Section Three
Determining the kinds of property in which both disparity (tafāḍul) and deferred exchange (nasīʾah) are permissible

With regard to things in which the two practices may be combined—that is, both disparity in amount and deferment—the schools differ:
• In al-Shāfiʿī’s view, any property not subject to ribā may lawfully be sold with both disparity and deferment.
• Mālik allows the combination provided the property is neither ribā-liable nor a single, homogeneous genus;
• while Abū Ḥanīfah permits it in every case that falls outside the ribā commodities, without further restriction.

For Mālik the decisive factor in the ribā commodities, when disparity is in question, is sameness of genus, whereas in non-ribā commodities whose exchange is deferred he looks to whether the utilities coincide or differ: whenever the utilities differ he treats them as two separate genera even if they share the same name. Abū Ḥanīfah, by contrast, bases the ruling on the name itself, and so does al-Shāfiʿī; yet for al-Shāfiʿī the genus is relevant only in the ribā commodities—he prohibits disparity there—but it is never a cause for forbidding deferment. Such, then, is a concise statement of the three jurists’ positions in these three sections.

Items in which deferment is forbidden fall into two classes:

1. those in which disparity is likewise forbidden—already discussed—and

2. those in which disparity is allowed.

3. Items in which disparity is not permissible
   According to Mālik the reason deferment is barred is edibility; for al-Shāfiʿī it is edibility alone; and for Abū Ḥanīfah it is edibles that are sold by measure or by weight. When edibility is coupled with sameness of genus, al-Shāfiʿī forbids disparity; when a third attribute—storability—is added, Mālik likewise forbids disparity. If the genus differs, disparity is admissible while deferment remains prohibited.

4. Items in which Mālik does not prohibit disparity
   These are of two kinds: edible and non-edible.
   a. Edibles: Mālik still disallows deferment, the operative cause being edibility.
   b. Non-edibles: he forbids deferment where the utilities are identical yet the quantities differ; hence one ewe may not be exchanged for two ewes on credit unless one of them is kept for milk and the other for meat. This is the view most widely transmitted from him. Some report that he looks only to sameness of utility, regardless of disparity; on that reading, even a milk ewe for another milk ewe on credit would be impermissible. If the utilities differ, however, both disparity and deferment are permissible even within a single genus. Another opinion requires sameness of name together with sameness of utility, though the more famous stance is that the name is not taken into account—yet some do hold that it is.

Abū Ḥanīfah’s criterion for prohibiting deferment—apart from the cases in which he also forbids disparity—is sameness of genus, whether the utilities coincide or not; thus it is unlawful, in his view, to sell one ewe for another or for two ewes on credit, even when their utilities differ.

Al-Shāfiʿī, on the other hand, holds that whenever disparity is forbidden within the same genus, deferment is permissible. Accordingly, he allows the sale of one ewe for two, whether spot or on credit, and likewise one ewe for another. His evidence is the ḥadīth narrated from ʿAmr ibn