These, then, are the questions that pertain to the Prophet’s explicit wording in this chapter.
As for his prohibition of bayʿ al-thunyā and of “a sale with an attached stipulation,” although the underlying reason is gharar, it is more fitting to treat those two under the heading of sales vitiated by unlawful conditions.
Section: Sales about which the texts are silent
The issues left unmentioned in the revealed texts, over which the jurists of the various regions disagree, are numerous. We shall cite the most renowned of them so that they may serve as guiding principles for the diligent scholar.
Issue. Sales fall into two categories:
- A present, visible commodity; concerning its sale there is no disagreement.
- A commodity that is absent or impossible to inspect; here the scholars diverged.
Some maintained that selling what is absent is never permissible, whether it has been described or not. This is the better-known of the two opinions ascribed to al-Shāfiʿī and the explicit view of his school—namely, that an absent item may not be sold even with a detailed description.
Mālik and the majority of the people of Madinah held that the sale of an absent item on the basis of description is lawful provided its condition is not likely to change before possession is taken.
Abū Ḥanīfah ruled that one may sell an absent item without any description; once the buyer sees it, he has the option either to confirm or to rescind the sale. In his school, even a sale concluded on description carries the option of inspection, irrespective of how accurate the description proves to be. Mālik, however, considers the contract binding if the article matches the description, whereas al-Shāfiʿī regards the transaction in both situations as void ab initio.
Within the Mālikī school it has been reported—indeed, it occurs in the Mudawwanah—that selling an unseen item without description is permissible provided the option of inspection is stipulated, yet ʿAbd al-Wahhāb rejected this report, declaring it contrary to the school’s principles.
The root of the disagreement is whether the lesser degree of knowledge obtained through description, as opposed to direct sensory perception, constitutes operative ignorance that renders the sale excessive gharar, or whether it is insignificant and thus falls under the minor gharar overlooked by the Law. Al-Shāfiʿī judged it to be major gharar; Mālik deemed it minor; Abū Ḥanīfah held that the presence of an inspection option removes gharar altogether, despite the initial lack of sight.
For Mālik, by contrast, ignorance coupled with the absence of description affects the validity of the contract. Within his school there is no dispute that description merely stands in place of inspection because the item is out of sight or because unfolding it would entail hardship and possible damage were it repeatedly displayed. Hence he allowed the sale of goods packed in a barnamaj—i.e., on the strength of a written specification—yet did not permit the sale of weapons still in their sheath, or of a garment folded within its pleats, until the sheath is opened or the garment unfolded.
Abū Ḥanīfah supported his position with a report transmitted from Ibn al-Musayyab: the Companions of the Prophet—peace and blessings be upon him—once said, “We would be pleased to see ʿUthmān ibn ʿAffān and ʿAbd al-Raḥmān ibn ʿAwf transact with one another, so that we might know which of them is the more astute merchant.” Thereupon ʿAbd al-Raḥmān bought from ʿUthmān a horse in exchange for another parcel of land he owned, for forty thousand—or four thousand—(the report continues). The narration clearly involves the sale of something absent in an unrestricted manner, though Abū Ḥanīfah still requires the genus of the item to be specified.
A further element of risk enters both the sale by description and the sale with an inspection option: namely, whether the item actually exists at the time of contract. Consequently, they stipulated that the absent commodity be near at hand—unless its safety is a given, as with real estate—and from this point