The Muwatta of Imam Muhammad

Muhammad ibn al-Hasan ash-Shaybani

Translated by Muhammad Abdarrahman and Abdassamad Clarke

This is the narration of the Muwatta which the Hanafi imam Muhammad ibn al-Hasan ash-Shaybani narrated from Imam Malik.

Book of Sales in trading and deferred sales

1. the sale of 'Ariyas

756. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar from Zayd ibn Thabit that the Messenger of Allah, salla'llahu 'alaihi wa sallam, gave a concession for the owner of an 'Ariyah to sell it for an estimated amount [of its date produce]."

[The 'Ariya is a date-palm which is granted to a poor person for him to take its dates. In view of his poverty it is permitted him to sell the dates on the tree for other dates already harvested, a practice which is not ordinarily permitted-Translator]

757. Malik informed us, "Dawud ibn al-Husayn informed us that Abu Sufyan the mawla of Ibn Abi Ahmad informed him from Abu Hurairah that the Messenger of Allah, salla'llahu 'alaihi wa sallam, granted a concession concerning the sale of 'Ariyas in respect of that which is less than five wasqs or equal to five wasqs. Dawud was in doubt and did not know whether he said five or less than five."

[The wasq is a measure equivalent to sixty sa's.]

Muhammad said, "This is the position we take. Malik ibn Anas mentioned that the 'Ariyah is only that a man has date palms and gives another man to eat from the fruit of one or two palms for the man to take from them for his dependents. Later it becomes burdensome for him to go to the walled garden, and so he asks him to permit him not to do that and to give him an equivalent measure of some dried dates at the season of harvesting the date palms. There is no harm in all of this according to us, because all of the dried dates belonged to the former [the owner] and he gives of it whatever he wishes. If he wishes, he can give him the dates of the date palm, and if he wishes he can give him an equivalent measure of dried dates, because this is not regarded as a sale. If it were a sale, then it would not be permissible to sell dates for other dates at a later date."

2. that which is disapproved of in the sale of fruit before it is ripe

758. Malik informed us, "Nafi' narrated to us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade the sale of fruit before it is ripe. He forbade both the seller and the purchaser."

759. Malik informed us, "Abu'r-rijal Muhammad ibn 'Abd ar-Rahman from his mother 'Amrah that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade the sell of fruit until it was safe from the blight."

Muhammad said, "Nothing of fruit should be sold on the basis of it being left on the date palm until it should ripen unless it has reddened or yellowed and some of it has ripened. When it is like that then there is no harm in selling it on the basis that it should be left until it ripens. If it has not reddened or yellowed or if it is green or is a spathe, then in that case there is no good in selling it on the basis that it should be left until it ripens. There is no harm in selling it on the basis that it should be cut down and sold. Similarly, it has reached us from al-Hasan al-Basri that he said, 'There is no harm in the sale of the spathe on the basis that it should be cut,' and this is the position we take."

760. Malik informed us, "Abu'z-Zinad informed us from Kharijah ibn Zayd ibn Thabit from Zayd ibn Thabit that he would not sell his fruit until the Pleaides rose, referring to the sale of his date palms [fruit]."

3. a man selling some fruit and excluding some [from the sale]

761. Malik informed us, "'Abdullah ibn Abi Bakr informed us from his father that Muhammad ibn 'Amr ibn Hazm sold a walled garden of his called al-Afraq for four thousand dirhams, excluding from the sale eight hundred dirhams worth of dates."

762. Malik informed us, "Abu'r-Rijal informed us from his mother 'Amrah bint 'Abd ar-Rahman that she used to sell her fruit and exclude some of it from the sale."

763. Malik informed us, "Rabi'ah ibn 'Abd ar-Rahman informed us from al-Qasim ibn Muhammad that he used to sell and exclude some of it."

Muhammad said, "This is the position we take. There is no harm in a man selling his fruit and excluding some of it, if he excludes something [specific] from the whole [sale], a quarter or a fifth or a sixth."

4. what is disapproved in the sale of dried dates for fresh dates

764. Malik informed us, "'Abdullah ibn Yazid the mawla of al-Aswad ibn Sufyan informed us that Zayd Abu 'Ayyash the mawla of Bani Zuhrah informed him that he asked Sa'd ibn Abi Waqqas about someone who bought ordinary barley with another variety of barley, so Sa'd asked him, 'Which of the two are better?' He answered, 'The ordinary barley.'" He [Zayd] said, "He forbade me to do that and he said, 'I heard the Messenger of Allah, salla'llahu 'alaihi wa sallam, being asked about someone who bought dried dates with fresh dates and he asked, "Does the fresh date shrink when it dries?" The answered, "Yes," and so he forbade it.'"

Muhammad said, "This is the position we take. There is no good in a man buying a measure of twelve sa's of fresh dates with a similar measure of dried dates, hand to hand, because the fresh dates shrink when they dry and so become less than a measure of twelve sa's. It is for reason that buying with it is corrupt."

5. foods and other things that are not taken possession of

765. Malik informed us, "Nafi' informed us that Hakim ibn Hizam bought food which 'Umar ibn al-Khattab ordered him to for people. Then Hakim sold the food before he had taken possession of it. 'Umar ibn al-Khattab, may Allah be pleased with him, heard about that and rejected his sale. He said, 'Do not sell food which you have bought until you take possession of it.'"

766. Malik informed us, "Nafi' narrated to us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'Whoever buys food, let him not sell it until he takes possession of it.'"

Muhammad said, "This is the position we take. And similarly with everything which is sold of food or other things, the one who buys it ought not to sell it until he takes possession of it. That was also what 'Abdullah ibn 'Amr said, 'As for what the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade, it is that food be sold before it is taken possession of.' Ibn 'Abbas said, 'I only think that everything is like that.' So, we take the position that Ibn 'Abbas took: all things are like food: the purchase ought not to sell anything he has bought until he takes possession of it. The verdict of Abu Hanifah, may Allah show him mercy, was similar, except that he allowed a concession in cases of houses, properties and lands which have not been substantially altered, that they may be sold before they are taken possession of. As for us, we not regard as valid anything of that before they are taken possession of."

767. Malik informed us, "Abu'z-Zinad informed us from Busr ibn Sa'id from Abu Salih ibn 'Ubayd the mawla of as-Saffah that he informed him that he sold a garment called bazz to the people of Dar an-Nakhlah [in Madinah] to paid later at a specific date. Then they wanted to leave to go to Kufa, and so they asked to pay him in cash and that he would reduce the price for them. He asked Zayd ibn Thabit about that and he said, 'I do not tell you to consume that nor that you give it to someone else to consume.'"

Muhammad said, "This is the position we take. Someone who owes a debt to someone at a specific time, and then asks him to reduce the amount and then he would hasten the [time of the payment of] what remains, then that ought not to be done, because he would bring forward the payment of a little in place of a large debt. It is as if he sells a little in cash for a large debt. That is the verdict of 'Umar ibn al-Khattab, Zayd ibn Thabit and 'Abdullah ibn 'Umar, and it is the verdict of Abu Hanifah."

7. a man buying barley with wheat

769. Malik informed us, "Nafi' narrated to us that Sulayman ibn Yasar informed him that 'Abd ar-Rahman ibn al-Aswad ibn 'Abd Yaghuth ran out of fodder for his mount and so he said to his slave, 'Take some of your family's wheat and buy barley with it, but only take like for like.'"

Muhammad said, "We see no harm in a man buying a measure of barley with a [similar] measure of wheat, hand to hand. The well-known hadith on that from 'Ubadah ibn as-Samit is that he said, 'The Messenger of Allah, salla'llahu 'alaihi wa sallam, said, "Gold for gold, like for like. Silver for silver, like for like. Wheat for wheat, like for like, and barley for barley, like for like."'

"There is no harm in taking gold for silver and extra silver, nor is there any harm in taking wheat for barley and extra barley, hand to hand. There are many well known ahadith concerning that, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

8. a man who sells food on credit the payment for which is deferred to a certain period, and then later he buys with price something else

770. Malik informed us, "Abu'z-Zinad narrated to us that Sa'id ibn al-Musayyab and Sulayman ibn Yasar used to dislike a man selling food on delayed terms for gold [to be paid later], and then buying dates with that gold before taking possession of it [the gold]." Muhammad said, "We do not see any harm in him buying dates with it before taking possession of it if the dates are actual dates and not a debt. This position is mentioned as being that of Sa'id ibn Jubayr and that he did not see it as anything, and that he said, 'There is no harm in it.' That is the verdict of Abu Hanifah and of the generality of our fuqaha."

9. what is disapproved of bidding up the price [an-najash] and going out to meet goods [before they reach the market]

771. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade going out to meet goods until they have reached the markets, and he forbade bidding up the price."

Muhammad said, "This is the position we take. All of that is disliked. As for bidding up the price. As for an-najash, it is that a man attends and increases in the price offered, and gives for it for something which he has no intention of being with it, so that someone else will overhear that and buy it at his price, and this ought not to be. As for meeting the goods, then every land in which that would harm its people that ought not to be done. When things multiply there until it becomes such that that will do no harm to its people, then there is no harm in that, insha'Allah, exalted is He."

10. a man paying an advance for measured goods

772. Malik informed us, "Nafi' narrated to us that 'Abdullah ibn 'Umar used to say, 'There is no harm in a man buying food on known delayed terms for a known price whether or not his fellow [the seller] has the food, as long as it is not for crops which have not ripened or dates which have not ripened, because the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade selling fruit or buying it until they are ripe.'"

Muhammad said, "In this, according to us, there is no harm. It is an advance which a man pays for food to be delivered at a specified time in a specified measure and of a specified variety. There is no good in him stipulating that to be of specific crops or from specific date palms. That is the verdict of Abu Hanifah, may Allah, exalted is He, show him mercy."

11. sale with a declaration of freedom from liability

773. Malik informed us, "Yahya ibn Sa'id narrated to us from Salim ibn 'Abdullah ibn 'Umar that he sold a slave of his for eight hundred dirhams without liability [for any defects]. The one who bought the slave said to 'Abdullah ibn 'Umar, 'The slave has an illness you did not tell me about.' They took the dispute to 'Uthman ibn 'Affan. The man said, 'He sold me a slave, but he had an illness.' Ibn 'Umar said, 'I sold him without any liability [for defects].' 'Uthman gave judgement against Ibn 'Umar that he must swear an oath by Allah that he had definitely sold him and that he had no illness of which he knew, but 'Abdullah ibn 'Umar refused to swear an oath. The slave was returned to him and grew healthy again with him, so 'Abdullah ibn 'Umar sold him after that for one thousand, five hundred dirhams."

Muhammad said, "It has reached us that Zayd ibn Thabit said, 'Whoever sells a slave without any liability, then he has no liability for any defect, and that was the way that 'Abdullah ibn 'Umar sold without any liability, and he thought that it was a permissible declaration of freedom from liability.' So we take the position of Zayd ibn Thabit and 'Abdullah ibn 'Umar: whoever sells a slave or anything, and declares himself free of liability for any defects, and the purchaser is contented with that and takes possession of that on that basis, then he [the seller] is not liable for any defects, neither those he knows nor those he does not know, because the purchaser gave him freedom from liability for that. As for the people of Madinah, they said, 'The one who sells may declare himself free of liability for every defect which he does not know. As for that which he knows and conceals, then he may not declare himself free of liability for that.' They also said, 'If he sells with the sale of universal freedom from liability, then he is not liable for any defect, neither those he knows, nor those he does not know, if he says, "I sell to you with the sale of universal freedom from liability," then what he is saying is, "I am free of liability for every defect," and he makes that very clear, then it is more fitting that he is free of liability for what he has stipulated of that. And that is the verdict of Abu Hanifah and our verdict and [the verdict] of the generality."

12. Gharar [uncertain] sales

774. Malik informed us, "Abu Hazim ibn Dinar informed us from Sa'id ibn al-Musayyab that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade uncertain sales."

Muhammad said, "This is the position we take. Sales with uncertainty in them are all invalid, and that is the verdict of Abu Hanifah and of the generality."

775. Malik informed us, "Ibn Shihab informed us from Sa'id ibn al-Musayyab that he used to say, 'There is no usury in [sale of] animals, but there are three things with respect to animals which are prohibited: the madamin, the malaqih and the offspring of the foetus.' The madamin are those [foetuses] which are in the womb of female camels, the malaqih are those offspring which are [potentially] in the backs of male camels."

776. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade to sell the offspring of the foetus, which was a sale performed in the jahiliyyah in which someone would sell a female camel [deferring payment] until [the time] the female camel gave birth and then that which was in its womb gave birth."

Muhammad said, "All of these types of sale are disliked and ought not to be done because they are uncertain according to us, and the Messenger of Allah, salla'llahu 'alaihi wa sallam, has forbidden the sale with uncertainty."

13. The sale called muzabanah

777. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade the sale called muzabanah, and muzabanah is to sell fresh fruit for dried dates and to sell grapes for raisins by measure."

778. Malik informed us, "Ibn Shihab informed us from Sa'id ibn al-Musayyab that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade the sales [called] muzabanah and muhaqalah. Muzabanah is to buy fresh dates with dried dates, and muhaqalah is to buy crops with wheat, and to rent land with wheat. Ibn Shihab said, 'I asked about renting it with gold and silver and he said, "There is no harm in it."'"

779. Malik informed us, "Dawud ibn al-Husayn narrated to us that Abu Sufyan the mawla of Ibn Ahmad informed him that he heard Abu Sa'id al-Khudri saying, 'The Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade muzabanah and muhaqalah, and muzabanah is to purchase still in the tops of the trees with dried dates, and muhaqalah is renting land.'"

Muhammad said, "According to us, muzabanah is to purchase fresh dates still at the top of the date-palms with dried dates by measure, when it is not known whether the dried dates which he gives are more numerous or fewer, and [paying] raisins for grapes not knowing which of them is in greater quantity. Muhaqalah is to buy grain which is still in the ear with wheat by measure not knowing which of them is more numerous. All of this is disapproved and ought not to be embraced. That is the verdict of Abu Hanifah and of us and of the generality."

14. Buying animals with meat

780. Malik informed us, "Abu'z-Zinad informed us that Sa'id ibn al-Musayyab said, 'It is forbidden to sell animals for meat.' He [Abu'z-Zinad] said, 'I said to Sa'id ibn al-Musayyab, "What do you think about a man who buys an aged she-camel with ten ewes," or he said, "ewe?" Sa'id ibn al-Musayyab answered, "If he bought it to slaughter it, then there is no good in that."' Abu'z-Zinad said, 'Those people I came upon [of the Followers] used to forbid selling animals for meat. It used to be written in the injunctions [notebooks of rulings] of the governors at the time of Abban [ibn 'Uthman ibn 'Affan] and Hisham [ibn Isma'il al-Makhzumi] that, "They are forbidden to do that."'"

781. Malik informed us, "Dawud ibn al-Husayn informed us that he heard Sa'id ibn al-Musayyab saying, 'A part of the gambling of the people of jahiliyyah was the barter of meat for a sheep or two sheep.'"

782. Malik informed us, "Zayd ibn Aslam informed us from Sa'id ibn al-Musayyab that it reached him that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade selling live animals for meat."

Muhammad said, "This is the position we take. Whoever barters the meat of sheep and goats for a live sheep, and it is not known whether the meat is more or what is on the sheep is more, then the sale is corrupt and disapproved, and it ought not to be done. This is like muzabanah and muhaqalah, and similarly bartering olives for oil, and sesame oil for sesame seeds [is not allowed]."

15. a man bargaining with another man for something, and then someone else offers him more

783. Malik informed us, "Nafi' narrated to us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'Do not bid against each other.'"

Muhammad said, "This is the position we take. When a man is bargaining with another for something, then someone else ought not to offer more for it in order to buy it or leave it [so that the other person buys it at an inflated price]."

16. That which makes the exchange between the seller and buyer obligatory

784. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'Each of the two parties to the sale still has the option [to accept or reject] from his companion as long as they have not separated except for in the case of the sale of option [to revoke the sale].'"

Muhammad said, "This is the position we take. Its explanation according to us and according to what has reached us from Ibrahim an-Nakha'i that he said, 'The two parties to the sale still has the option as long as they have not separated.' He said, 'As long as they have not separated from discussing the terms of the sale. When the one who is selling says, "I have sold it to you," then he has the right to retract it as long as the other has not said, "I have bought it." When the purchaser says, "I buy it for such and such," then he has the right to retract it as long as the seller has not said, "I have sold it [to you]."' And that is the verdict of Abu Hanifah and of the generality of our fuqaha."

17. the difference of opinion concerning the sale between the seller and purchaser

785. Malik informed us that it had reached him that Ibn Mas'ud used to narrated that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, "Whichever two parties buy and sell with each other, then the [decisive] word is that of the seller or else they both annul [the sale]."

Muhammad said, "This is the position we take. If they disagree concerning the price, then they must both swear oaths and then they both annul the sale - and that is the verdict of Abu Hanifah and of the generality of our fuqaha - if the object of sale still exists. If the buyer has already consumed it, then the position taken is that which the buyer says concerning the price according to the verdict of Abu Hanifah. As for our verdict, it is that they both must swear oaths and then they return the price."

18. a man who sells goods for deferred payment and then later the purchaser becomes bankrupt

786. Malik informed us, "Ibn Shihab informed us from Abu Bakr ibn 'Abd ar-Rahman ibn al-Harith ibn Hisham that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'Whatever man sells goods and then the purchaser becomes bankrupt, while the one who sold it had not received anything of its price, but he finds it [the goods] itself, then he has more right to it. If the purchaser dies, then the owner of the goods with respect to them is in the same position as the other creditors.'"

Muhammad said, "If he [the buyer] dies and he had taken possession of them, then his companion [the seller] is in the same position as the other creditors with respect to them [the goods]. If the buyer had not taken possession of them, then he [the seller] has more right to them than the other creditors until he has taken his right in full. Similarly, if the buyer becomes bankrupt without having taken possession of what he had bought, then the seller has more right to that which he sold so that he can take his right in full."

19. a man buying or selling something in which he is tricked or who fixes the price for the Muslims

787. Malik informed us, "'Abdullah ibn Dinar informed us from 'Abdullah ibn 'Umar that a man mentioned to the Messenger of Allah, salla'llahu 'alaihi wa sallam, that he was [often] deceived in buying and selling. The Messenger of Allah, salla'llahu 'alaihi wa sallam, said to him, 'Whoever you trade with then say, "No trickery!"' So when the man sold he would say, 'No trickery!'"

Muhammad said, "We are of the view that this was for that man in particular."

788. Malik informed us, "Yunus ibn Yusuf informed us from Sa'id ibn al-Musayyab that 'Umar ibn al-Khattab passed by Hatib ibn Abi Balta'ah when he was selling his raisins in the marketplace, and 'Umar said to him, 'Either you raise the price, or you get out of our market.'"

Muhammad said, "This is the position we take. The price ought not to be fixed for the Muslims, so that it is said to them, 'Sell such and such for such and such,' so that they are compelled to do that, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

20. stipulating conditions in a sale which invalidate it

789. Malik informed us, "Az-Zuhri informed us from 'Ubaydullah ibn 'Abdullah ibn 'Utbah ibn 'Abdullah ibn Mas'ud that ['Abdullah ibn Mas'ud] bought from his wife from the tribe of Thaqif a slave girl, and she laid the condition on him that, 'If you sell her, then she is mine for the price for which you sell her.' He asked 'Umar ibn al-Khattab for a judgement on that and he said, 'Do not approach her while anyone else has a condition concerning her.'"

Muhammad said, "This is the position we take. Every condition which the seller places on the buyer or which the buyer places on the seller, and which is not one of the [ordinary] conditions of sale, and in which there is some benefit for the seller or the buyer, then the sale is invalid. And that is the verdict of Abu Hanifah, may Allah show him mercy."

790. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that he used to say, 'A man may only have sexual intercourse with a slave woman who is his slave women whom if he wishes he may sell and if he wishes he may give away and if he wishes he may do with whatever he wishes [such as setting her free, writing a contract for her to purchase her freedom, leaving a bequest in his will that she be freed, etc.].'"

Muhammad said, "This is the position we take. This is the explanation of the fact that a slave ought not to own slave-girls because if he were to give her away, his gift would not be valid in the same sense as the gift of a free man is valid. This is the meaning of the saying of 'Abdullah ibn 'Umar, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

21. someone selling date-palms which have been fecundated or a slave who has property

791. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'Whoever sells date-palms which have been fecundated, then their fruit belongs to the seller unless the buyer stipulates them [as his].'"

[Date-palms yield imperfect crops if the cultivators do not fecundate the females with the spadix of the males.]

792. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that 'Umar ibn al-Khattab said, 'Whoever sells a slave who has property, then his property belongs to the seller unless the buyer stipulates it [as his].'"

Muhammad said, "This is the position we take, and it is the verdict of Abu Hanifah."

22. a man purchasing or receiving as a gift a slave-girl who has a husband

793. Malik informed us, "Az-Zuhri informed us from Abu Salamah ibn 'Abd ar-Rahman that 'Abd ar-Rahman ibn 'Auf bought a slave-girl from 'Asim ibn 'Adi, but found her to have a husband and so her returned her."

Muhammad said, "This is the position we take. Her purchase is not [equivalent to] her divorce. Thus if she has a husband this is a defect in her for which she is returned, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

794. Malik informed us, "Ibn Shihab informed us that 'Abdullah ibn 'Amir gave 'Uthman ibn 'Affan a slave-girl from Basra who had a husband. 'Uthman said, 'I will not go near her until her husband separates from her.' Ibn 'Amir gave her husband that which made him contented and he separated from her."

23. the liability agreements of three [days] and a year

795. Malik informed us, "'Abdullah ibn Abi Bakr informed us saying, 'I heard Abban ibn 'Uthman and Hisham ibn Isma'il teaching people the liability agreements of three days and of a year, on which they delivered khutbahs from the minbar.'"

Muhammad said, "We do not recognise the liability agreement of three days, nor the liability agreement of a year unless the man stipulates his option of returning [the goods] in three days or his option of returning [the goods] in a year, so then in that case it will be according to what he stipulates. As for the verdict of Abu Hanifah, it is that only the option of returning [the goods] in three days is valid."

24. the sale of the relationship of wala'

796. Malik informed us, "'Abdullah ibn Dinar informed us from 'Abdullah ibn 'Umar that the Messenger of Allah, salla'llahu 'alaihi wa sallam, forbade the sale of the relationship of wala' and giving it away as a gift."

[Wala' is the relationship that adheres on the setting free of a slave, such that the one who sets the slave free is an heir of the slave.]

Muhammad said, "This is the position we take. It is not permitted to sell the relationship of wala', nor to give it away, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

797. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar from A'ishah the wife of the Prophet, salla'llahu 'alaihi wa sallam, that she wanted to buy a female slave and set her free. Her owners said, 'We will sell her on condition that her wala' belongs to us.' She mentioned that to the Messenger of Allah, salla'llahu 'alaihi wa sallam, and he said, 'Don't let that prevent you, because the wala' only belongs to the person who sets free.'"

Muhammad said, "This is the position we take. The wala' belongs to the person who sets free, and it may not be transferred from him, and it just like blood-relationship. That is the verdict of Abu Hanifah and of the generality of our fuqaha."

25. the sale of slave mothers of [the owner's] children

798. Malik informed us, "Nafi' informed us from 'Abdullah ibn 'Umar that he said, "'Umar ibn al-Khattab said, 'If a slave woman gives birth to a child by her owner, then he may not sell her, give her away nor leave her to be inherited. He has his enjoyment of her, and when he dies she is free."

Muhammad said, "This is the position we take, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

26. the sale of animals in exchange for animals on deferred terms or paid for [on the spot]

799. Malik informed us, "Salih ibn Kaysan informed us that al-Hasan ibn Muhammad ibn 'Ali informed him that 'Ali ibn Abi Talib sold a camel of his called 'Usayfir for twenty camels on deferred terms."

800. Malik informed us, "Nafi' informed us that 'Abdullah ibn 'Umar bought a riding camel with four camels which he guaranteed to pay in full to him at ar-Rabadhah."

Muhammad said, "Something different than this has reached us from 'Ali ibn Abi Talib."

Ibn Abi Dhu'ayb informed us from Yazid ibn 'Abdullah ibn Qusayt from Abu'l-Hasan al-Bazzar from a man of the Companions of the Messenger of Allah, salla'llahu 'alaihi wa sallam, from 'Ali ibn Abi Talib, may Allah ennoble his face, that he forbade selling one camel for two camels on deferred terms, or a sheep for two sheep on deferred terms. It has reached us that the Prophet, salla'llahu 'alaihi wa sallam, forbade selling animals for animals on deferred terms, and this is the position we take, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

27. partnership in trade

802. Malik informed us, "Al-'Ala ibn 'Abd ar-Rahman ibn Ya'qub informed us that his father informed him saying, 'My father informed me and he said, "I used to sell garments at the time of 'Umar ibn al-Khattab and 'Umar said, 'Let not a non-Arab sell it in our market because they have not come to have fiqh-understanding in the deen, and they are not straight in weights and measures.'" Ya'qub said, "So I went to 'Uthman ibn 'Affan and asked him, 'Do you want some spoil acquired without fatigue?' HE asked, 'What is it?' I answered, 'Garments. I know where they are. Their owner is selling them cheaply and can hardly manage to sell them. I will buy them for you and then I will sell for you.' He said, 'Yes.' So I went and struck a deal for the garments. Then I came back to him and cast them into 'Uthman's house. When 'Uthman came back and saw the bundles in his house, he asked, 'What is this?' They answered, 'Garments which Ya'qub brought.' He said, 'Call him for me.' I came and he said, 'What is this?' I answered, 'This is what I told you about.' He asked, 'Have you looked at it?' I answered, 'I stood in for you.' However, he was put into doubt because of 'Umar's watchmen [who were preventing non-Arabs selling in the market]. He said, 'Yes.' 'Uthman went to 'Umar's watchmen and said, 'Ya'qub is selling my garments so do not stop him.' They said, 'Yes.' I brought the garments to the market, and it was not very long before I put their price in a my provision satchel and took it to 'Uthman taking also the person from whom I had bought the garments. I said, 'Count what is yours,' and he did so and there remained a great deal of money." He said, "So I said to 'Uthman, 'This is for you. As for me, I have not wronged anyone by it.' He said, 'May Allah reward you with the best!' and he rejoiced in that." He said, "I said, 'I have learnt the place of its sale, the like of it or better.' He said, 'Do you want to do it again?'" He said, "I said, 'Yes, if you want.' He said, 'I want.'" He said, "I said, 'Then, I desire much good, so make me a partner.' He said, 'Yes, it is between me and you.'"'"

Muhammad said, "This is the position we take. There is no harm in two men being partners in buying [goods] to be paid for later, if one of them does not have capital, on the basis that the profit is to be shared between them, and the loss is on the same basis." He said, "And if one of them apart from his companion undertakes the buying and selling, and there is no extra profit for either of them over the other, because that is not permitted for one of them to consume the profit for which his companion was liable. That is the verdict of Abu Hanifah and of the generality of our fuqaha."

28. judgement

803. Malik informed us, "Ibn Shihab informed us from al-A'raj from Abu Hurairah that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'Let none of you prevent his neighbour from fixing a timber in his wall.'" He said, "Then Abu Hurairah said, 'How is that I see you averse to it? By Allah, I will cast it between your shoulder-blades!'"

Muhammad said, "This, according to us, is by way of expansive generosity of people towards each other, and good character. As for in judgement, then they are not to be compelled to do that. It has reached us that a dispute was taken to Shurayh on that issue, and that he said to the one who had fixed the timber, 'Lift your foot from your brother's riding camel [i.e. remove the timber], because this is the judgement with respect to that, but expansive generosity is better.'"

29. Gifts and Sadaqah

804. Malik informed us, "Dawud ibn al-Husayn informed us from Abu Ghatafan ibn Tarif al-Murri from Marwan ibn al-Hakam that he said, ''Umar ibn al-Khattab, may Allah, exalted is He, be pleased with him, said, "Whoever gives a gift in order to strengthen a tie of kinship or by way of sadaqah, then he must not seek to have it returned. Whoever gives a gift thinking that he only meant to obtain recompense by it then it is according to his gift, and he may have it returned if he is not pleased with it [the recompense].'"

Muhammad said, "This is the position we take. Whoever gives a gift to someone who is a mahram relative, or as a sadaqah, and then the person who has been given it takes possession of it, then the one who has given it may not seek to have it returned. Whoever gives a gift to someone other than a mahram relative, and that person takes possession of it, then he may seek to have it returned if he is not recompensed for or provided with something better in his hand, or it leaves his possession [the one given the gift] to someone else's possession. That is the verdict of Abu Hanifah and of the generality of our fuqaha."

30. presents

805. Malik informed us, "Ibn Shihab informed us from Humayd ibn 'Abd ar-Rahman ibn 'Awf and from Muhammad ibn an-Nu'man ibn Bashir who both narrated it from an-Nu'man ibn Bashir that he said that his father brought him to the Messenger of Allah, salla'llahu 'alaihi wa sallam, and said, 'I have given a present to this son of mine of a slave which I had.' The Messenger of Allah, salla'llahu 'alaihi wa sallam, asked, 'Have you given every child a present the like of this?' He answered, 'No.' He said, 'Then take him back.'"

806. Malik informed us, "Ibn Shihab informed us from 'Urwah from A'ishah, may Allah be pleased with her, that she said that Abu Bakr had given her a present of clippings twenty wasq loads from his property [of date-palms] at 'Aliyyah. When death came to him, he said, 'By Allah! my dear daughter, there is no one whom I would prefer to see self-sufficiently independent after me than you. Nor is there anyone whose being in need is more distressing to me than you. I had given you a present from my property of clippings twenty wasq-loads. If you had clipped them and taken possession of them they would have been yours, but today they are the property of [my] heirs, which is your brother and two sisters, so divide them up according to the Book of Allah, mighty is He and majestic.' She said, 'Father, by Allah! even if it had such-and-such, I would definitely have left it. [However] there is only Asma', so who is the other [sister]?' He answered, 'The one in the womb of Bint Kharijah whom I think is a girl.' She gave birth to a girl."

807. Malik informed us, "Ibn Shihab informed us from 'Urwah ibn az-Zubayr from 'Abd ar-Rahman ibn 'Abd al-Qari [from the tribe of Qarah] that 'Umar ibn al-Khattab said, 'What is wrong with men who give their sons presents and then later retain them.' He said, 'Then if one of his sons dies he says, "My property is in my hand, and I did not give it to anyone," but if he himself dies, he says, "It is my son's, I had given it to him." Whoever gives a present which the one who is given it does not take possession until it is such that if he dies it goes to his heirs, then it is invalid.'"

808. Malik informed us from Ibn Shihab from Sa'id ibn al-Musayyab that 'Uthman ibn 'Affan said, "Whoever gives a present to a small son of his who has not reached to taking possession of the present, but he makes it public and has it witnesses, then that is valid, and the one who is in charge of it is his father."

Muhammad said, "All of this is the position we take. A man ought to treat his children equally in giving presents, and not prefer some over others. Someone who gives a present to a child or to someone else, and the one given the present does not take possession of it until the one who gives the present or the one given the present dies, then it is to be returned to the one who gave the present and to the heirs. It is not valid for the one given the present until he takes possession of it, except in the case of the small child, because if his father takes possession of it for him and if he makes it public and has it witnessed then it is valid for the father, and the father has no way to renege on that, nor any way to take it by force after he had it witnessed, and that is the verdict of Abu Hanifah and of the generality of our fuqaha."

31. 'umra [granting a dwelling to someone for their lifespan] and sukna [granting the use of a dwelling to someone for their lifespan]

809. Malik informed us, "Ibn Shihab informed us from Abu Salamah ibn 'Abd ar-Rahman from Jabir ibn 'Abdullah that the Messenger of Allah, salla'llahu 'alaihi wa sallam, said, 'If a man is given a dwelling for his lifespan and that of his posterity, then it belongs to the one who was given it and does not return to the one who gave it, because he gave a gift in which the shares of inheritance are calculated.'"

810. Malik informed us, "Nafi' informed us that Ibn 'Umar had inherited Hafsah's house. Hafsah had let Bint Zayd ibn al-Khattab dwell in it as long as she lived. When Bint Zayd ibn al-Khattab died, then 'Abdullah ibn 'Umar took possession of the house, and he regarded it as his."

Muhammad said, "This is the position we take. 'Umra is a gift. So if someone gives something for the duration of someone's life then it is his. Sukna [granting the use of a dwelling for someone's lifetime] is an 'ariyah [i.e. granting the use of something but not its ownership], so that it returns to the one who granted its residence and to his heirs after him. That is the verdict of Abu Hanifah and of the generality of our fuqaha. As to the 'umra whether he says it is for him and his descendants, or does not say that it is for his descendants, it is the same."