to him, he may not sell them back to that person for the same price, a higher price, or a lower price, because this would replace one debt with another, unless he has paid the price without this having been stipulated. This applies under both views within Ibn al-Qāsim’s doctrine. Sahnūn, however, said that he may sell them back under the view that the seller bears the risk of loss, by analogy with Mālik’s permission—may Allah have mercy on him—to rescind by mutual agreement the sale of a slave woman held in custody pending verification that she is not pregnant. His position is more clearly supported by analogy.

Section

If, however, he sells them back for a different kind of consideration from that for which he purchased them, of a kind for which they may lawfully be sold, this is permissible provided that he does not receive advance payment as a contractual stipulation—unless the goods are nearby and advance payment is therefore permissible.

It is stated in the book: “I see no harm in that, provided it is known that the garment existed when the second transaction took place.” This concerns a man who rents his house to another man for two months in return for a garment specified by description and kept in the latter’s house, then sells that garment back to him before taking possession of it, in exchange for dirhams, dinars, two similar garments of the same kind, or the use of another house belonging to him.

This wording calls for scrutiny. Knowing that absent goods exist when the contract is concluded is not a condition of its validity, although the apparent wording suggests otherwise. If that were a condition of validity, selling absent goods would never be permissible, since there is no way to ascertain that an absent item still exists while it remains absent. What the statement means is that, if the transaction takes place and it is subsequently established that the garment existed at that time, the transaction is valid, and ownership is known to have passed from the buyer to the seller. The risk of loss also passes from the seller to the buyer according to Mālik’s other view—may Allah Most High have mercy on him—which Ibn al-Qāsim adopted; or from the buyer to the seller according to Mālik’s first view.

If, after the transaction, the goods are found to have perished before it, or it is not known whether they perished before or after it, the transaction is void: neither ownership of the garment nor the risk of its loss passes from the party who previously held it. ʿAbd al-Haqq discussed how this wording should be understood, reporting that one of his Qarawī teachers said: