Another instance of their divergence concerns a man who purchases foodstuffs for a set price on a fixed term. When the maturity date arrives the seller has no food to hand over, so he buys from the buyer an equivalent quantity of food for a price he will pay him in place of the food that is now due. Al-Shāfiʿī rules this permissible, maintaining that it makes no difference whether the seller acquires the food from someone other than the creditor-buyer or from the buyer himself. Mālik, however, forbids it, viewing it as a device that leads to selling food before taking possession: the seller is, in effect, returning the very food that had become a debt upon him and is therefore selling it before he has taken delivery of it.
The form that this stratagem may take is as follows: a man purchases food from another on credit for a known term. When the term falls due, the one who owes the food says, “I have none available, but let me purchase from you the food that is owed to you.” Mālik responds that this is invalid because it amounts to a sale of food before possession. The debtor then suggests, “Very well—sell me some food and I will return it to you,” and the situation we have described ensues: he hands the creditor back the same food that had been taken from him, while the money paid remains nothing but the price of the food still outstanding against him.
Al-Shāfiʿī, for his part, does not consider such suspicions. In determining what sales are lawful or unlawful he looks only to what the parties stipulate, pronounce, and manifest in their actions. The jurists are unanimously agreed that if a man were to say, “I sell you these dirhams for the same number of dirhams, but you may pay after a year—or a month,” the transaction is forbidden; yet were he to say, “Lend me these dirhams and give me a year—or a month—to repay,” it would be allowed. The sole distinction lies in the wording and intent of a sale versus the wording and intent of a loan.
Because, as we noted, the fundamental avenues to ribā are five—“Give me time and I will pay you more,” disparity in measure, deferred exchange, “remit a portion and pay early,” and the sale of food before taking possession—one might suspect the present case of belonging to that category: the person hands over dinars and receives more in return without effort or liability. It is therefore fitting to examine the last two principles here.
- “Remit a portion and pay early” (ḍaʿ wa-taʿajjal). Ibn ʿAbbās among the Companions and Zufar among the jurists of the provinces deem it permissible. A number of others—including Ibn ʿUmar among the Companions, Mālik, Abū Ḥanīfah, al-Thawrī, and many provincial jurists—prohibit it, while al-Shāfiʿī has two conflicting opinions on the matter. Mālik, together with the majority of those who disallow ḍaʿ wa-taʿajjal, nonetheless permits a debtor to settle his deferred liability in advance by handing over merchandise that the creditor accepts, even though its value is less than the face value of the debt.
The chief argument of those who prohibit the practice is that it resembles the unanimously forbidden increase in consideration for a deferment: in both cases time itself is treated as part of the price. There, when the creditor grants additional time he charges an increase; here, when he foregoes part of the time he reduces the price correspondingly.
Those who allow it rely primarily on the report transmitted from Ibn ʿAbbās:
When the Prophet—peace and blessings be upon him—ordered the expulsion of Banū al-Naḍīr, some of them came to him and said, “O Prophet of God, you have commanded us to leave, yet we have outstanding debts that have not fallen due.” The Messenger of Allah, peace and blessings be upon him, replied, “Remit a portion and take what is due to you now.”
Hence the dispute hinges on whether the analogy based on similarity overrides, or is overridden by, this prophetic report.