The Mālikīs base their position on the view that a bulk sale conducted without measure or weight (al-juzāf) gives the buyer no right to demand any make-up for shortage (ḥaqq al-tawfiyah); liability passes to him by the very act of contracting. In their eyes this amounts to restricting the general prohibition by means of an analogy whose operative cause is presumed. Under this heading likewise falls the consensus that a man may not sell something he does not yet own. Some jurists classify that practice as ʿīnah when it is regarded as a stratagem (sadd al-dharīʿah) leading to usury; others prohibit it because delivery may prove impossible and therefore list it among the sales tainted with gharar.

A typical way in which such a stratagem is used to reach the usury that the Law forbids is as follows: One man says to another, “Give me ten dinars and I will pay you back, after such-and-such a term, double that amount.” The other replies, “That is not lawful, but I will sell you commodity X”—naming something he does not possess—“for that same sum.” He then goes out, buys the commodity, and hands it over once the sale between them has been concluded, the commodity’s market value being roughly equal to the cash the first man had wanted to borrow on interest. The Mālikī school gives further particulars on this issue, which are not our concern here; yet there is no disagreement that this very form is impermissible in the school—namely, when they have already agreed on the price at which the seller will obtain the commodity before he has actually purchased it.

As for exchanging one debt for another (dayn bi-dayn), the entire Muslim community is unanimous in forbidding it. They have, however, differed over certain situations and whether they constitute debt for debt. Thus Ibn al-Qāsim would not allow a creditor to accept from his debtor, in settlement of what he is owed, ripe dates, the right to occupy a house, or a maidservant ready for service, regarding all of that as debt for debt. Ashhab permitted it, saying, “This is not debt for debt; the latter only arises when collection of any part of the liability has not yet begun.” Many Mālikīs adopt that analogy, and it is likewise the opinion of al-Shāfiʿī and Abū Ḥanīfah.

Among the matters Mālik allowed in this field—contrary to the majority of scholars—is what he states in the Mudawwanah: people used to sell meat at a fixed price, payment to be made on pay-day, and the purchaser would take each day a specified weight. He reports that the people saw no harm in the practice, and the same applied to anything customarily bought in the markets. Ibn al-Qāsim, however, transmitted that such a sale is only permissible for perishable fruit that might spoil if taken all at once; for wheat and the like it is not allowed.

These, then, are the foundational principles of this section. Everything in it has been prohibited by the Sharīʿah because of the unfairness (ghabn) that occurs knowingly and by mutual consent.

[Chapter Three: Sales Forbidden on Account of Gharar]
[Sales Expressly Mentioned in the Texts or Widely Reported]
Chapter Three
[Concerning the Sales That Are Prohibited]

These are the sales forbidden because of inequity whose source is gharar. Gharar arises in transactions through various kinds of ignorance: ignorance of the identity of the subject matter, or of the very nature of the contract; ignorance of the description of the price and the thing sold, of their quantity, or of the time of payment if one is stipulated; ignorance of the object’s existence, or inability to take possession of it—which amounts to the impossibility of delivery; or ignorance of its soundness (that is, whether it will remain intact). Certain sales combine most of these elements, or at least some of them.