Chapter Four: On discerning what is counted as a single kind and what is not
The jurists disagreed in this area over what should be treated as one kind—something that renders disparity (tafāḍul) impermissible—and what should not, across many questions. We shall mention only the most renowned of these.
They also differed over the attributes of a single kind that make disparity unlawful: must the two portions be identical in quality—neither superior nor inferior—and in condition—neither dry nor moist?
- Their dispute about whether two items belong to the same kind or to two kinds
A prime example is wheat and barley. One group held they are a single kind, while another held they are two. The first opinion is that of Mālik, al-Awzāʿī, and—as Mālik relates in the Muwaṭṭaʾ—Saʿīd ibn al-Musayyab. The second is that of al-Shāfiʿī and Abū Ḥanīfah, whose evidence rests on transmitted texts and on analogy.
a) Transmitted evidence: the Prophet—peace and blessings be upon him—said, “Do not sell wheat for wheat, nor barley for barley, except like for like,” thereby treating the two as distinct kinds.
A further wording found in some routes of the ḥadīth of ʿUbādah ibn al-Ṣāmit states, “Sell gold for silver as you wish, wheat for barley as you wish, and salt for dates as you wish—hand-to-hand.” ʿAbd al-Razzāq and Wakīʿ narrated it from al-Thawrī, and al-Tirmidhī declared this addition sound.
b) Analogy: wheat and barley are two items whose names and benefits differ; therefore they must be two kinds, on the same basis that silver and gold, and everything else whose name and utility diverge, are deemed separate kinds.
Mālik, on the other hand, relies primarily on the continuous practice of the early people of Madīnah. His later followers supported his position with transmitted texts and analogy as well. Their textual proof is the report in which the Prophet—peace and blessings be upon him—said, “Food for food, like for like.” They argued that the term “food” encompasses both wheat and barley. This, however, is weak, for a general text is clarified by the authentic specific ḥadiths.
Their analogical argument is that wheat and barley share many of the same uses; and whenever two commodities have identical utilities, exchanging them unequally is, by consensus, forbidden.
According to Mālik, hulled barley (sult) and ordinary barley constitute one kind. As for pulses (legumes), they are one kind in zakāt; but with respect to sales two reports exist from him: one treating them as a single kind, the other as several. The disagreement arises from the clash between their shared and divergent utilities: whoever stresses the points of agreement says “one kind,” whereas whoever gives weight to the differences says “two kinds” or “several kinds.” Rice, millet, and panic grass (jawars) are, in his view, one kind.
- A further issue: identifying the single kind of meat in which disparity is not allowed
Mālik maintained: meats fall into three kinds—
• the flesh of quadruped land animals,
• the flesh of aquatic creatures, and
• all poultry meat.
Each of these three is internally one kind, but because the three differ from one another, exchanging between them with disparity is permissible.