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Tuesday, 21 October 2008

Al-Majallah al-Ahkam al-‘Adaliyyah #3 - Book 1: Sale - Introduction

Book 1: Sale

Introduction

Term of Islamic Jurisprudence Relating to Sale

101. Offer is the statement made in the first place with a view to making a disposition of property and such disposition is proved thereby.
102. Acceptance is the statement made in the second place with a view to making a disposition of property. The contract becomes completed thereby.
103. Contract is what the parties bind themselves and undertake to do with reference to a particular matter. It is composed of the combination of offer and acceptance.
104. The conclusion of a contract consists of connecting offer and acceptance together legally in such a manner that the result may be perfectly clear.
105. Sale consists of exchanging property for property. It may be concluded or non-concluded.
106. A concluded sale is a sale in which there is a concluded contract. Such sales are divided into valid, voidable, executory, and conditional.
107. A non-concluded sale is a
  1. It is a thing the benefit of which is lawful to enjoy
  2. The other is acquired property.
Example—A fish while in the sea is not of any specific value. When it is caught and taken, it becomes property of some specific value.
108. A valid sale, or a sale which is permitted, is a sale which is lawful both in itself and as regards matters incidental thereto.
109. A voidable sale is a sale that, while valid in itself, is invalid as regards matters incidental thereto. That is to say, it is a concluded sale in itself, but is illegal as regards certain external particulars. (See Chapter 7.)
110. A void sale is a sale that is invalid in itself.
111. A conditional sale is a sale that is dependent upon the rights of some third party, such as a sale by an unauthorized person.
112. An unauthorized person is a person who, without any legal permission, deals with the property of some other person.
113. An executory sale is a sale not dependent upon the right of any third person. Such sales are divided into irrevocable and
revocable sales.
114. An irrevocable sale is an executory sale to which no option is attached.
115. A revocable sale is an executory sale to which an option is attached.
116. An option means having the power to choose, as will be explained in the relevant chapter.
117. An absolute sale is a final sale.
118. A sale subject to a right of redemption is a sale in which one person sells property to another for a certain sum of money, subject to the right of redeeming such property, upon the price thereof being returned. Such a sale is considered to be permissible in view of the fact that the purchaser has a right to enjoyment of the property sold. It is also in the nature of a voidable sale inasmuch as the two parties have the right of canceling the sale. Again, it is in the nature of pledge, in view of the fact that the purchaser cannot sell the property sold to any third party.
119. A sale with a right of usufruct is a sale subject to a right of redemption, the vendor having a right to take the property sold on hire.
120. Sales are also divided into four categories with reference to the thing sold:
  1. Sale of property to another person for a price. This is the commonest category of sale and is consequently specifically called sale;
  2. Sale by exchange of money for money;
  3. Sale by barter
  4. Sale by immediate payment against future delivery.
121. Exchange of money for money consists of selling cash for cash.
122. Sale by barter consists of exchanging one specific object for some other specific object, that is to say, of exchanging property for property other than money.
123. Sale by immediate payment against future delivery consists of paying in advance for something to be delivered later, that is to say, to purchase something with money paid in advance, thereby giving credit.
124. A contract for manufacture and sale consists of making a contract with any skilled person for the manufacture of any thing. The person making the article is called the manufacturer; the person causing the article to be made is called the contractor for manufacture, and the object made is called the manufactured article.
125. Property held in absolute ownership is anything owned absolutely be man and may consist either of some specific object or of an interest therein.
126. Property consists of something desired by human nature and which can be put aside against time of necessity. It comprises movable and immovable property.
127. Property of some specific value is spoken of in two senses.
  1. It is a thing the benefit of which is lawful to enjoy;
  2. The other is acquired property.
Example—A fish while in the sea is not of any specific value. When it is caught and taken, it becomes property of some specific value.
128. Movable property consists of property that can be transferred from one place to another. This includes cash, merchandise, animals, things estimated by measure of capacity and things estimated by weight.
129. Immovable property consists of property such as houses and land which are called real property and which cannot be transferred to another place.
130. Cash consists of gold and silver coins.
131. Merchandise consists of things such as goods and piece goods other than cash, animals, things estimated by measure of capacity and things estimated by weight.
132. Things estimated by quantity are those things the amount of which is determined by any measure of capacity or of weight, or of number, or of length.
133. These articles repeat the measures of capacity etc. given in Articles 131 and 132 above.
137. The expression ‘possessing defined boundaries’ refer to real property the boundaries and limits of which can be fixed.
138. Undivided jointly owned property is property that contains undivided jointly owned shares.
139. An undivided jointly owned share is a share that extends to and includes every part of the jointly owned property.
140. By a particular species of thing is meant a thing in respect to which there is no disproportionate difference in so far as the component elements thereof are concerned.
141. A wholesale contract is a contract for sale en bloc.
142. “Right of way” is the right of passing over real property held in absolute ownership belonging to another.
143. The right of taking water is the right of taking a clearly defined and ascertained share of water from a river.
144. The right of flow is the right of discharging water and of letting water drip from a house to some place outside.
145. A common article is a thing the like of which can be found in the market without any difference of price.
146. A rare article is an article the like of which cannot be found in the market, or, if it can be found, is different in price.
147. Articles measured by enumeration and which closely resemble each other are those things in respect to which there is no difference as regards the price of each particular object. They are all in the nature of common articles.
148. Articles measured by enumeration and which are dissimilar from each other are those things is respect to which a difference in price exists as regards each particular article. They are all regarded as rare articles.
149. The fundamental basis or essence of sale consists of one piece of property being exchanged for another. Offer and acceptance are also referred to as the fundamental basis of sale, since they imply exchange.
150. The subject of sale is the thing sold.
151. The thing sold is the property disposed of, that is, the specific object specified at the sale and which constitutes the original object thereof, because enjoyment can only be had of specific objects, price being the means of exchanging property.
152. The price is the amount to be paid for the article sold, and entails liability to make payment.
153. The fixed price is a price mutually named and agreed upon by the two contracting parties whether corresponding to the real value of whether more or less.
154. The value is the real price of an article.
155. A priced article is a thing that is sold for a price.
156. A postponement of payment consists of putting off a debt to a definite date.
157. Payment by installments consists of a postponement of payment of a debt in order that it may be paid at deferent and definite periods.
158. A debt is the thing that is proved to be owed. Examples would be:
  1. A certain sum of money lend to A and owed by him.
  2. A sum of money not immediately available.
159. A specific object is any that is definite and identified. Examples—A house; a horse; a chair; a heap of corn in existence; a sum of money. All these are specific.
160. The vendor is a person who sells property.
161. The purchaser is a person who buys.
162.The two parties to the sales are the vendor and the purchaser. They are also called the two contracting parties.
163. Rescission is setting aside and stopping a contract of sale.
164. Deceit is cheating.
165. Flagrant misrepresentation is representation that is practiced with regard to no less than one-twentieth in the case of merchandise; one tenth in the case of animals; and one fifth in the case of real property.
166. Time immemorial refers to that thing the origin of which is unknown to any person.
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