The remaining two permutations—those over which the jurists disagree—are:
- The original seller repurchases the commodity before the maturity date, paying cash but at a price lower than the first price.
- He repurchases it for a term that extends beyond the original maturity date, but at a higher price than the first.
According to Mālik and the majority of the scholars of Medina, both arrangements are impermissible. Al-Shāfiʿī, Dāwūd, and Abū Thawr, however, deem them permissible.
Those who forbid them do so because they view the second sale in the light of the first and suspect that the parties’ true aim is to exchange dinars for a greater number of dinars to be received later—precisely the usury (ribā) the Revelation forbids. They hold that the two parties have merely dressed the loan in the guise of a pair of sales so as to reach the unlawful, just as if one man were to say to another, “Lend me ten dinars for a month and I shall repay you twenty.” The other replies, “That is not lawful, but I will sell you this donkey for twenty, payable in a month, and then buy it back from you for ten in cash.”
In the other permutations no such suspicion arises. If the buyer pays more than the original price yet the new term is shorter, no one accuses him of seeking ribā; likewise, if he pays less than the original price but on a longer term, the intent to practice usury is not presumed. Among the proofs cited by those who hold this view is the report transmitted by Abū l-ʿĀliyah from ʿĀʾishah:
She related that a woman who had been a concubine of Zayd ibn Arqam came to her and said, “Mother of the Believers, I sold Zayd a slave for eight hundred dinars, payment to be made from his stipend. When he later needed the money, I bought the slave back from him before the payment date for six hundred.” ʿĀʾishah replied, “How evil is what you sold and how evil is what you bought! Inform Zayd that, unless he repents, he has invalidated the striving he performed alongside the Messenger of Allah, peace and blessings be upon him.” The woman asked, “What if I abandon the transaction and simply take the six hundred dinars?” ʿĀʾishah answered, “Then that is” —and she recited: “So whoever receives an admonition from his Lord and desists, he may retain what is past” (al-Baqarah 2:275).
Al-Shāfiʿī and his followers respond that the report of ʿĀʾishah is not soundly established; moreover, Zayd himself disagreed with her, and when the Companions differ our school proceeds by analogy (qiyās). A similar statement to that of al-Shāfiʿī is also narrated from Ibn ʿUmar.
If, after the first sale, the commodity has depreciated while in the possession of the original buyer, al-Thawrī and a group of Kūfan jurists allow the original seller—who is awaiting payment—to repurchase it for cash at a lower price. From Mālik there are two divergent reports on this point.
The situations that Mālik regards as unlawful ruses (dharāʾiʿ) in these contracts are those that lead to any of the following: “Give me time and I will pay you extra,” the sale of what may only be exchanged in equal measure at a disparity, the sale of what may only be exchanged hand-to-hand on deferment, the combination of a sale with a loan, exchanging gold and goods for gold, the formula “reduce the debt and I will pay early,” the sale of grain before taking possession of it, or any contract that merges a sale with a currency exchange—for these are the root avenues to ribā.
Under this heading also falls their disagreement about someone who sells food for food before taking possession of it. Mālik, Abū Ḥanīfah, and a number of others prohibit it, whereas al-Shāfiʿī, al-Thawrī, al-Awzāʿī, and others allow it. Those who forbid it argue that it closely resembles a sale of food for food on deferment, while those who permit it see no such resemblance, considering that the parties’ intent is not to arrive at that forbidden outcome.