Purchase and sale and prohibition of uncertainty (gharar) in the Islamic tradition

Abstract

The article deals with the requirements of Islamic law to the classical contract of sale. The authors conclude that the prescriptions regarding the conclusion of a contract of sale, the object of sale and price formation are largely explained by the attraction of Islam to fairness in trade. Analyzing the object of sale, the authors refer to the concept of property al-mal and its forms — al-‘ayn property and al-dayn property. They insist that al-dayn is not an analogue of “obligation”, “debt” or “right of claim” in the civilian or common law’s traditions, but a unique concept of Islamic law, literally meaning “property-in-the-future”. Considering limitations to sale of aldayn property, this article presents the approaches of madhhabs regarding the admissibility of and conditions for the sale and purchase of bay’ al-dayn. The basic tool of Islamic law on its way to a sustainable trade turnover is the prohibition of transactions involving excessive uncertainty gharar. The authors reveal the meaning of this concept, which has been widely discussed among Muslim scholars, and distinguish the notion of gharar from the notions of risk and gambling maysīr. Application of gharar prohibition to the contract of sale has its own characteristics and gharar becomes key point in deciding whether it is admissible to sell a non-existent thing — bai‘ al-ma‘dum and sell a thing that is not available for physical inspection at the time of the transaction — bai‘ al-ghayb. In this context, the authors pay attention to the distance sale of goods by preliminary inspection, by sample and by description. Islamic law offers an effective mechanism for removing the uncertainty gharar from the contract of sale, giving the buyer the right of khiyar al-ru’yah, which is the right to unilaterally withdraw from the contract at the moment of physical inspection of the goods.