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TERMS OF ISLAMIC JURISPRUDENCE RELATING TO SALE

Article 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.

Article 102. Acceptance is the statement made in the second place with a view to making a disposition of property. The contract becomes completed thereby.

Article 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.

Article 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.

Article 105. Sale consists of exchanging property for property. It may be concluded or non-concluded.

Article 106. A concluded sale is a sale in which there is a concluded contract. Such sales are divided into valid, voidable, executory, and conditional.

Article 107. A non-concluded sale is a sale which is void.

Article 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.

Article 109. A voidable sale is a sale which, 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 VII.)

Article 110. A void sale is a sale which is invalid in itself.

Article 111. A conditional sale is a sale which is dependent upon the rights of some third party, such as a sale by an unauthorized person.

Article 112. An unauthorized person is a person who, without any legal permission, deals with the property of some other person.

Article 113. An executory sale is a sale not dependent upon the rights of any third person. Such sales are divided into irrevocable and revocable sales.

Article 114. An irrevocable sale is an executory sale to which no options are attached.

Article 115. A revocable sale is an executory sale to which an option is attached.

Article 116. An option means having the power to choose, as will be explained in the relevant Chapter.

Article 117. An absolute sale is a final sale.

Article 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 a pledge, in view of the fact that the purchaser cannot sell the property sold to any third party.

Article 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.

Article 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.

Article 121. Exchange of money for money consists of selling cash for cash.

Article 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.

Article 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.

Article 124. A contract for manufacture and sale Consists of making a contract with any skilled person for the manufacture of any particular 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.

Article 125. Property held in absolute ownership is anything owned absolutely by man and may consist either of some specific object or of an interest therein.

Article 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.

Article 127. Property of some specific value is spoken of in two senses. (1) It is a thing the benefit of which it 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.

Article 128. Movable property consists of property which can be transferred from one place to another. This includes cash, merchandise, animals, things estimated by measure of capacity and things estimated by weight.

Article 129. Immovable property consists of property such as houses and land which are called real property and which cannot be transferred to another place.

Article 130. Cash consist of gold and silver coins.

Article 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.

Article 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.

Articles 133-6. These Articles repeat the measures of capacity etc. given in Articles 131 and 132 above.

Article 137. The expression ‘possessing defined boundaries’ refers to real property the boundaries and limits of which can be fixed.

Article 138. Undivided jointly owned property is property which contains undivided jointly owned shares.

Article 139. An undivided jointly owned share is a share which extends to and includes every part of the jointly-owned property.

Article 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.

Article 141. A wholesale contract is a contract for sale en bloc.

Article 142. Right of way is the right of passing over real property held in absolute ownership belonging to another.

Article 143. The right of taking water is the right of taking a clearly defined and ascertained share of water from a river.

Article 144. The right of flow is the right of discharging water and of letting water drip from a house to some place outside.

Article 145. A common article is a thing the like of which can be found in the market without any difference of price.

Article 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.

Article 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.

Article 148. Articles measured by enumeration and which are dissimilar from each other are those things in respect to which a difference in price exists as regards each particular article. They are all regarded as rare articles.

Article 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.

Article 150. The subject of sale is the thing sold.

Article 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.

Article 152. The price is the amount to be paid for the article sold, and entails liability to make payment.

Article 153. A fixed a fixed price a fixed price is rice is a price mutually named and agreed upon by the two contracting parties whether corresponding to the real value or whether more or less.

Article 154. The value is the real price of an article. Article 155. A priced article is a thing which is sold for a price. Article 156. A postponement of payment consists of putting off a debt to a definite date. Article 157. Payment by installments consists of a postponement of payment of a debt in

order that it may be paid at different and definite periods. Article 158. A debt is the thing which is proved to be owing.

Examples:

(1) A certain sum of money lent to A and owed by him;

(2) A sum of money not immediately available;

(3) A definite sum of money now available;

(4) An ascertained share of a heap of corn prior to division. All these are in the nature of debts.

 

Article 159. A specific object is any object which 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 objects.

Article 160. The vendor is a person who sells property.  Article 161. The purchaser is a person who buys. Article 162. The two parties to the sale are the vendor and the purchaser. They are also

called the two contracting parties. Article 163. Rescission is setting aside and stopping a contract of sale. Article 164. Deceit is cheating. Article 165. Flagrant misrepresentation is misrepresentation which 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. Article 166. Time immemorial refers to that thing the origin of which is unknown to any person.