its permissibility, the kinds of contracts, sales, and defects to which it applies, and the parties for whom it is allowed—whether by explicit stipulation or without qualification. All of that has in fact already been treated in substance above, so take note.

The Second Section
The Time When Liability for the Sold Item Commences

The jurists disagreed about the moment at which the buyer becomes responsible for the item of sale, so that the loss is his if the item is destroyed.

Abū Ḥanīfah and al-Shāfiʿī hold that the buyer is not liable until he has taken possession.

Mālik, however, distinguishes. In this regard he divides sales into three categories:

1. A sale in which the seller is obliged to deliver the full quantity by weight, measure, or number.

2. A sale in which no such obligation exists—namely a bulk sale (jusāf) or an item that is neither weighed, measured, nor counted.

Concerning the first type, the buyer does not assume liability until he takes possession. Concerning the second, provided the goods are present, the settled view of the school is that liability rests with the buyer even if he has not yet taken possession.

As for goods that are absent, there are three reports from Mālik:

• The most famous: liability remains with the seller unless he makes it a condition upon the purchaser.
• The second: liability is upon the purchaser unless he stipulates that it remain with the seller.
• The third: a distinction is drawn between commodities unlikely to survive until the time of delivery—such as livestock and perishable foodstuffs—and those that can ordinarily be expected to endure.

The disagreement in this question turns on whether taking possession (qabd) is a condition for the validity or binding force of the contract, or merely a legal consequence of a contract already concluded. Whoever regards possession as a prerequisite for the sale’s soundness or irrevocability maintains that liability stays with the seller until the buyer takes possession. Whoever regards possession as simply a necessary legal effect of the sale, which is already binding, maintains that liability passes to the buyer as soon as the contract is formed.

Mālik’s differentiation between goods that are present and absent, and between those requiring exact delivery and those that do not, is based on istihsān (equitable preference); and in most cases istihsān amounts to looking to public benefit and fairness.

The Ẓāhirī scholars, as far as I am aware, hold that the mere conclusion of the contract transfers liability to the buyer. Their chief proof is the consensus that any yield or benefit (kharāj) accruing before possession belongs to the buyer, and the Prophet—peace and blessings be upon him—said, “Benefit is tied to liability.”

Those who dissent rely on the ḥadīth of ʿAttāb ibn Asīd: when the Messenger of Allah—peace and blessings be upon him—sent him to Mecca, he instructed him, “Forbid them to sell what they have not yet taken possession of, and to profit from that for which they bear no liability.”

We have already discussed the requirement of possession with respect to the object sold in