Chapter Three
Lending Sale (Bay’ As-Salaf)
1042. A lending sale is based on the thing sold being an unspecific asset to be handed over in the future at a specific time. It does not apply if the sold thing is a specific asset or an unspecific (amount) of a specific type of thing/asset, but has to be an ordinary sale in which delaying handing over the bought thing is made conditional.
A lending sale is also based on the buyer paying the seller the price; this is why it is also called bay‘ as-Selem (handing over).
1043. Conditions of bay’ as-Salaf are:
1- Specifying the sold item regarding its description/specification and amount in a way that makes it commonly known and specified.
2- The two exchanged assets must not be gold or silver, or one of them gold and the other silver. However, if the two exchanged assets are measured by weight (wazn) or measure (measuring vessel) (kayl), or one of them is weighed by weight and the other by measure (measuring vessel), the price is not allowed to be something that is weighed or measured, of its own type, and even not of other types as an obligatory precaution. Also, it is an obligatory precaution in things that are measured by numbers that the price must not be something of its type when there is specific, asset-type excess in one of them over the other.
3- Specifying a precise date for handing over the sold goods, by days, months, years or anything that is precise and known; so it is not valid to specify it by the harvest time, the return of a traveller etc., and if the postponement date is made likewise, the sale is invalidated.
4- Specifying in the contract the country or town of handing over if the places are different regarding the ease or difficulty of handing over, the wishes (as to the country of handing over) were involved and loss was possible due to it, so that ignorance of it may lead to misunderstanding by either of the parties.
5- The seller at the time of contracting must not be aware that he will be unable to hand over on the postponed date, in the country or town which is specified for handing over, otherwise the contract is invalidated. But if he was not aware of his inability and something unexpected came up which prevented handing over in the specified time, the buyer will then have the choice of either waiting until the seller can hand him over the goods, or invalidate the contract and demand the return the price paid or its alternative without addition or deduction.
6- The receipt of payment is secured when it takes place before leaving the contracting meeting, if the two parties are together, or by paying before the contract if they establish the contract from a distance; included in this if the buyer has a debt owed by the seller and its payment date arrives before the contract, or after it but before they separate. But if the payment time has not yet been reached, or if the buyer does not pay him the price as described above, the sale will be invalidated.
1044. If the date arrives and the seller hands over the sold goods according to the specifications and amount, the buyer cannot refuse to take it. However, if he hands it over not observing one or both of them (i.e. the specifications and amount), the ruling is as follows:
First: If its specification was inferior to the contract’s specification, then if the buyer accepts it, the transaction is valid, otherwise, the seller must hand over the goods according to the agreed specifications. But if the item has superior specifications, then the buyer must accept, unless his desire was specific to the desired specification not any other, in which case he is not obliged to accept and the seller will have to hand over the goods according to the agreed specifications.
Second: If the goods handed over are of a different amount, if it is less and the buyer accepts it and relieves the seller of the obligation to supply the rest, the sale is valid; otherwise the seller must hand over the amount agreed on, but if it is more than the agreed amount, he is not obliged to accept it until after the seller had taken away the excess.
1045. If the buyer wants to sell what he bought in lending, the ruling is as follows:
a- It is not allowed to sell it to anyone other than the seller before the specified date arrives, neither for cash nor as a postponed sale (nasi’ah), whatever the type of the sold goods.
b- He is allowed to sell it to the seller before the arrival of the date as a cash sale, but not allowed as a postponed-payment sale.
c- He is allowed to sell it to the seller or to others after the arrival of the date as a cash sale, also to sell it as a postponed-payment sale unless this included interest. Interest will take place:
1- if the two exchanged things are measured by weight or measure (measuring vessel) and are the same in type, or different in type as an obligatory precaution.
2- if the two exchanged things are from the same type, measured in numbers, with one more than the other by a specific addition, such as if one person sells to another one thousand apples for one thousand and two hundred apples; this is as an obligatory precaution.