Section
Advance-payment contracts are impermissible for goods that are difficult to obtain with the stipulated specifications because, if goods meeting those specifications are found, the sale is completed; otherwise, the purchaser receives his advance back. The transaction is thus a sale in one eventuality and a loan in another, which again constitutes a loan that yields a benefit. Such contracts are also impermissible for goods that cannot be adequately defined by description, because this involves uncertainty, and “the Prophet, peace and blessings be upon him, forbade sales involving uncertainty.”
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A valid advance-payment contract must establish an obligation to deliver goods of a specified description and quantity at a specified future date. Failure to meet any of these conditions introduces the uncertainty prohibited in sales.
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Another condition of its validity is that payment of the advance must not be delayed for more than three days, “because the Prophet, peace and blessings be upon him, prohibited exchanging a deferred debt for a deferred debt. A stipulated delay of three days or less is permissible.” A passage in al-Mudawwana apparently indicates that no stipulated delay is permissible, however short or long. The well-known position, however, is the one we stated first.
There is unanimous agreement that stipulating a delay exceeding three days is impermissible, whether the advance consists of money or goods. If payment is delayed beyond three days without any such stipulation, the contract is not rescinded when the advance consists of goods. When it consists of money, however, there is disagreement. According to al-Mudawwana, this invalidates the advance-payment contract and requires its rescission. According to Ibn Habīb, it is not rescinded unless a delay exceeding three days was stipulated.
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Mālik—may Allah Most High have mercy on him—held differing positions concerning the shortest permissible term for an advance-payment contract. Initially, he held that the shortest permissible term was a period during which market prices rise