Description
ABSTRACT
Buying and selling as a meant to get goods easily, one could exchange money with goods he needed the seller. Of course with the value agreed upon by both parties. The law of buying and selling were permissible basically, It was meaning that every Muslim in earning a living could by meant of buying and selling. The contract of sale of goods plays an important role in Islamic legal theory both as a facilitator of commercial and non-commercial transactions and as a normative basis for the development of other legal institutions.’ In the former sense the contract of sale is by far the most common type of transaction and perhaps the most significant contract in our daily life. As the contract of sale has features similar to other contracts and also has its own unique features, its definition and scope are problematic in the sense that both have to be exhaustive and exclusive. The work addresses the concept of sale of goods in Islamic law and its various elements.
TABLE OF CONTENTS
COVER PAGE
TITLE PAGE
APPROVAL PAGE
DEDICATION
ACKNOWLEDGEMENT
ABSTRACT
CHAPTER ONE
1.0 INTRODUCTION
1.1 BACKGROUND OF THE STUDY
- PROBLEM STATEMENT
- AIM AND OBJECTIVE OF THE STUDY
- SCOPE OF THE STUDY
- SIGNIFICANCE OF THE STUDY
- PROJECT ORGANISATION
CHAPTER TWO
LITERATURE REVIEW
- DEFINITION OF BUYING AND SELLING
- LEGAL BASIS OF BUYING AND SELLING
- POSITION AND FUNCTION OF THE CONTRACT OF SALE AND PURCHASE
- TYPES AND SELLING SHARES BUY
CHAPTER THREE
3.0 THE CONCEPT OF SALES OF GOODS UNDER ISLAMIC LAW OF TRANSACTION
- SCOPE OF THE CONTRACT OF SALE IN ISLAMIC LAW
- THE CONCEPT OF MAL IN ISLAMIC LAW
- THE CONFLICT BETWEEN THE CONCEPT OF MAL AND THE CONCEPT OF SALE OF GOODS
CHAPTER FOUR
4.0 DIFFICULTIES ASSOCIATED WITH SALES OF GOODS
4.1.1 Money as goods
4.1.2 The sale of animals and their remains
4.1.3 The sale al-Mushfi’ (joint ownership)
4.1.4 The sale of water and minerals
4.1.5 The sale of crops
4.1.6 The sale of airspace
4.1.7 The sale of human remains and parts of the body
4.1.8 The sale of land and the status of objects situated on or in the land
CHAPTER FIVE
- CONCLUSION AND RECOMMENDATION
TABLE OF STATUTES
Messanger of allah
SAW – – – – – – 19
Rasulullah SAW – – – – -20
Muslim scholars
Ibn ‘Arafah – – – – – -28
Zahiris – – – – – – -30,37
Hanafis – – – – – –30, 33,37
Malikis – – – – – – -30,37
Al-Shiradhf’s and Al-Nawawf’s – – – – 31
Regulation
Sharfi’a – – – – – – -33
Al-Nawawi – – – – – – -33
Middle East law
Egyptian Civil Code – – – – – – —- 41
Syrian Civil Code – – – – – – -42
Libyan Civil Code – – – – – – – 43
LIST OF ABBREVIATION
UAE – United Arab Emirates
CHAPTER ONE
1.0 INTRODUCTION
1.1 BACKGROUND OF STUDY
God makes each human being to worship others so that they can help, exchange in all matters aimed at the common good. In this way people’s lives become orderly and fertile, and one relationship with another becomes solid. Buying and selling in terms of fiqh is called al- bay‘ which means selling, replacing, and exchanging something with something else.
Recitation of al-bay ‘ in Arabic is sometimes used for the understanding of his opponent, namely the word (buy). Thus, the word al-bay ‘ means selling, but at the same time also means buying.
In terms of terminology, there are several definitions of buying and selling proposed by Islamic jurisprudents, even though the substance and purpose of each definition are the same. Hanafiyah Ulama defines buying and selling by “exchanging assets with assets in a certain way“[1]. The purpose of muamalah is the creation of a harmonious relationship between humans.
Thus creating peace and tranquility. Allah SWT said in (QS. Al-Maidah: 2) as follows which means: “And please help you in (doing) virtue and piety, and do not help in sinning and hostility and fear Allah, verily God is very hard on His torment.”[2]
Buying and selling is proof that humans are social creatures (zoon politicon), beings who need other creatures to fulfill their survival. Without buying and selling human beings cannot fulfill their own needs, buying and selling an activity carried out in human life, in order to maintain their lives in the midst of society, Allah SWT says in (Surah al-Baqarah: 275) which means:
“Their situation is like that, because they say (arguing), Indeed, buying and selling is the same as usury, even though Allah has justified buying and selling and prohibiting usury.”[2]
Buying and selling as a means to get goods easily, one can exchange money with goods he needs the seller. Of course with the value agreed upon by both parties.
The law of buying and selling is basically permissible, meaning that every Muslim in earning a living can by means of buying and selling.
The law of buying and selling can be compulsory if the only way to sustain life is (ie, buying and selling) that someone can possibly carry out. Allah SWT says in (Surah an- Nisa’: 29) as follows which means:
“Who believe, do not eat each other’s treasures with the heart. Except by commercial means that apply with the likes of you. And do not kill yourself. Verily, Allah is the Most Merciful to you.”[2][3]
1.2 PROBLEM OF THE STUDY
During the early development of Islamic law Muslim scholars tended to adopt a comprehensive approach that includes all types of contracts that have similar aspects. Being one of the nominate contracts, the contract of sale is viewed by classical scholars as having a wide scope that is capable of embracing many types of contracts such as salam sale, muqadyadah (commodity exchange), Sarf (Money exchange), istisnd’ (contract of manufacture) and al-wafd’ sale (sale with the right of redemption).[5] A comprehensive examination of Islamic legal literature shows that classical Muslim scholars have included under their discussion on sale.
However, with special reference to the exchanged counter values, the concept of sale has been classified into the following three main categories:[4]
(1) Sale of commodity for commodity, known as barter trading (muqdyadah); (2) Sale of commodity for money or vice versa;5 (3) Sale of money for money or money exchange (sarf).[5] This denotes that classical Muslim scholars have dealt with the concept of sale in its wider scope, which was, perhaps, because of the prevailing socio-economic factors during their age or because of problematic aspects of their adopted definition. Although this article does not intend to discuss the socio-economic factors that might have influenced the scope of sale of goods, the discussion on the definitional problem reveals that Muslim scholars have, in fact, tried their best to avoid being entrapped within their contemporary circumstances by providing a comprehensive analysis of the various sale possibilities.
1.3 OBJECTIVES OF THE STUDY
The objectives of the study are:
- To address the approaches and critically assess the arguments about sales of goods under Islamic law.
- To address the problematic scope and definition of the concept of sale of goods in Islamic law and its various elements.
- To address other aspects that have an effect on the scope of the contract of sale of goods in Islamic law.
1.4 SCOPE OF THE STUDY
The scope of the work covers important role contract of sale of goods plays an in Islamic legal theory both as a facilitator of commercial and non-commercial transactions and as a normative basis for the development of other legal institutions.’ In the former sense the contract of sale is by far the most common type of transaction and perhaps the most significant contract in our daily life. As the contract of sale has features similar to other contracts and also has its own unique features, its definition and scope are problematic in the sense that both have to be exhaustive and exclusive. Two approaches address the scope of the contract of sale of goods in Islamic legal theory. The classical approach assigns to the concept of sale a very wide scope, whereas the post-classical and modern approach tends to narrow down its scope to specific types of transactions.
1.5 SIGNIFICANCE OF THE STUDY
This study will serve as an eye opener to all reader towards the rules that governs Islamic buying and selling of goods. It will also serve as a means of exercising caution when practicing Islamic finance. It will serve as a means of understanding the difference between Islamic and conventional sales of goods.
1.6 PROJECT ORGANISATION
The work is organized as follows: chapter one discusses the introductory part of the work, chapter two presents the literature review of the study, chapter three describes the methods applied, chapter four discusses the results of the work, chapter five summarizes the research outcomes and the recommendations.
[1] Haroen Nasrun, Muamalah Fiqh, Jakarta: Gaya Media Pratama, 2010
[2] Imam al–Mundziri, Mukhtasar Shahih Muslim, Bandung: PT Jabal, 2012.
[3] Al-Sharbini, IMuighin’al -Muhtqtj,V ol. 2, p. 2; see also Article 105 of the Mejelle
[4] Al-Sabiin i,’abd Al-Rahman, Al-Madk/hal Lidirasat AI-Tashri’ Al-Isl mi, Damascus, Al-Matba’ah Al-Jadidah, 1978, p. 84; ‘Alam Al-DTn, MuhiI Al-Din, Al-Anmwal Wa Al-Mawairith Wa Al- WaSiyyah, Al-Rabat, Matba’at Al-Sahil (n.d.), p. 24.
[5] Anderson D, “Islamic Law and Structural Variations in Property Law”, International Encyclopaedia of Comparative Law, Part 2, 1975, p. 196.
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