Chapter Five: Transactions Prohibited on Account of Harm or Unfair Dealing

Section: One man selling over his brother’s sale

The reports relevant to this chapter are those that have firmly established the Prophet’s—peace and blessings be upon him—prohibition of a man’s selling over his brother’s sale, of anyone bidding over his brother’s bid, of intercepting incoming caravans, of a city-dweller selling on behalf of a Bedouin, and of najsh (artificially inflating the price).

The jurists have differed—though not widely—over the finer points of these traditions.

Mālik said: The meaning of the Prophet’s words, “None of you shall sell over another’s sale,” and of his prohibition that anyone bid over his brother’s bid are one and the same. They apply when the seller has already inclined toward the bidder and nothing remains between them save some minor formality such as selecting the gold, stipulating liability for defects, or a disclaimer thereof. Abū Ḥanīfah explained the ḥadīth in exactly the same way.

Al-Thawrī said: The purport of “None of you shall sell over another’s sale” is that no third party should approach the two contracting parties and say, “I have better goods than these,” without limiting that to any particular stage of the negotiations.

Al-Shāfiʿī said: The prohibition comes into play once the deal has been concluded verbally but before the two parties have separated, and someone then offers them merchandise of his that is superior. This follows his doctrine that a sale becomes binding only upon separation. Thus he and Mālik agree that the ban addresses the moment just before the sale becomes binding, as we shall note later.

The jurists of the great regional centers hold that such conduct is reprehensible (makrūh); yet if the sale is carried out it stands, for the offer was made while the earlier sale was not yet complete. Dāwūd and his followers, however, declare the contract void in every circumstance, invoking the general wording of the ḥadīth. A view reported from Mālik—and from some of his companions—also calls for rescission so long as delivery has not taken place; but Ibn al-Mājishūn rejected applying this to sales, saying that Mālik’s statement pertained only to marriage, as discussed earlier.

They likewise disagreed over whether a dhimmī falls under the prohibition against bidding over another’s bid. The majority said there is no difference between a dhimmī and anyone else. Al-Awzāʿī held that there is no objection to bidding over a dhimmī’s bid, for he is not a Muslim’s “brother,” and the Prophet—peace be upon him—said, “None of you shall bid over his brother’s bid.” On this basis some scholars forbade auction-style sales, though the majority allow them. Their dispute turns on whether the prohibition should be taken as merely discouraged or as forbidden, and, if forbidden, whether it applies in all situations or only in some.

Section: Intercepting Caravans to Purchase Their Goods

Regarding the Prophet’s prohibition of intercepting caravans, the scholars differ about its precise intent. Mālik held that the ruling addresses the townsfolk in the marketplace, lest the interceptor gain the benefit of the cheaper price to their exclusion. Accordingly, he maintained that no one may buy goods until they have entered the market—provided the interception took place nearby. If the encounter was at a distance, however, there is no harm. In the Mālikī school, “near” is defined as roughly six miles. Should the purchase nevertheless occur, it is valid, but the buyer must share those goods—whose natural market is that town—with the people of the marketplace.