If a butcher slaughters an animal and it is purchased by a person, it shall belong to the person who has purchased it. If the person sells it, he shall have a share in its price in proportion to the money he has paid, so that supposing that the animal has been slaughtered, the price of its head and skin shall be evaluated from the rest, and he shall have in that proportion from the price.
The same rule shall apply to the case when a person sells an animal intended for eating its meat, and he excludes is head and skin. Or when two persons or a group of people share, and one of them stipulates, suppose, that its head and skin or head and leg shall belong to him, or a person purchases an animal and then another shares with him, for example, for its head and skin, in all such case, the sale shall be valid when the person intends to slaughter the animal. So when he slaughters it, he shall be entitled to the animal itself, or shall be a partner in the way already explained.
Problem # 2 If a person says to another, “Purchase an animal in partnership with me.” These words shall mean his intention of employing him as his agent in purchase. If the latter purchases the animal as ordered by him, the animal shall belong to both of them by half and half, except if he has specified differently, the partnership shall be on that basis. If the person ordered pays to the ordering person the price owed by him, he shall have no right of recourse against him as long as the situation does not demand that his intention was to purchase and he had paid what he owed from him, as purchasing from a distant place, where the object purchased is not delivered unless its price is paid. In such case he shall have recourse against the ordering person (for the payment of the price).
Iqalah, in fact, is revocation of a contract by both the parties. It is exercised in all types of contracts, except Marriage. According to the opinion closer to the traditional authority, the heirs do not succeed the principals in such contracts. It takes place by any words that carry the sense intended among those using that language in which it is expressed. Both the parties may say: “Both of us have exercised Iqalah with you Or “Both of us have revoked (the contract). Or one of them should say: “I have exercised Iqalah with you’, and the other party should accept it.
Apparently it is sufficient if one of the parties should ask the other to pronounce Iqalah, and the other party does pronounce Iqalah. It is a not a condition to express it in Arabic language.
Apparently it is executed by way of Mu’atat in the sense that each of the parties should return to the other what had been transferred to him as a mark of revocation.
Problem # 1 Iqalah is not executed by increase or decrease in the specified price (on which the transaction had taken place).
So if the buyer exercises Iqalah on something higher than the prescribed price, or the seller on something lesser than that, it shall be declared void, and the things exchanged between them shall continue to be the respective property of the parties.
Problem # 2 In Iqalah revocation and Iqalah are not executed.
Problem # 3 Iqalah is valid in everything on which a contract takes place, as well as on some of them, and in that case price is divided proportionately.
Rather when there are several sellers or buyers, the Iqalah of one of the parties is valid in proportion to his own share in spite of the existence of the other party even if his partner does not agree.
Problem # 4 The destruction (of the object of sale) is not an impediment in the validity of Iqalah. So if both the parties pronounce Iqalah the consideration shall revert to its respective owner.
If it exists, he shall take hold of it, and if it is destroyed, he shall have recourse for its substitute in case it admits of substitute, and its price in case it admits of price.
Problem # 1 If one of the two partners sells his share to a stranger, the other partner shall, in case of fulfillment of all the following conditions, have a right of its ownership take it away from the buyer for the price he has paid. This right is called the Right of Shuf’ah (Pre-Emption) and its holder Shafi.
Problem # 2 There is no objection in the establishment of the right of pre-emption everything that is immovable, if it were divisible, as lands, gardens, houses, and the like.
As regards its establishment in movable things like garments, commodities, and animals and immovable thing that are not divisible, like rivulets, roads, wells most of the hand-mills, public baths, as well as trees, palm-trees, fruits on the palm and other trees there is objection. It is more cautious for the partner not to enjoy the right of pre-emption except with the consent of the buyer, for the buyer to agree with the partner if he wants to assert his right of pre-emption.
Problem # 3 Pre-emption is established in a joint share in a joint property, but there is no such right due to neighbourhood. So if a person sells his house or real estate, his neighbour shall not be entitled to assert the right of pre-emption.
So also it is not established in a divided property when one of the partner sells his separated share, except when it is a house that was divided after having bee jointly or was initially separated but has a common passage, and one of the two partners has sold his separated share in the house, then the right of pre-emption shall be established for the other partner, if it has been sold by the former along with the passage; contrary to the case when the passage continues to be held jointly by both of them, in that case, there shall be no pre-emption in the sale of the share.
Whether sharing in drinking water of a well, river or a water pipe is affiliated with the rule of sharing the passage; there is hesitation (in giving its answer in the affirmative), and so caution must not be given up here too as in case of the preceding Problem
Similar is the case of affiliating the case of a garden and lands with that of sharing the passage in a house. So in these cases too caution must not be given up.
Problem # 4 If a person sells something and a portion of the house, or sells his separated portion of the house with a joint share in another house by a single contract of sale, his partner shall have the right of pre-emption in the joint portion in relation to its share in the price, though it is more cautious to obtain mutual consent, as already mentioned.
Problem # 5 It is a condition for the establishment of the right of pre-emption that the portion should have been transferred by sale. If it has been transferred by way of a dower, a ransom for Khul’, or a conveyance or a free gift (Hibah), it shall not be subject to the claim of pre-emption.
Problem # 6 Pre-emption is established when a property is held jointly by two persons, but there is no pre-emption if it is held by three persons or more. It makes apparently no difference if the sellers are two from among three partners while the Shafi’ (or the person asserting pre-emption) is a single person, or vice versa. Of course, if one of the two partners should sell his share to two persons at a time, or gradually, the property now belonging to three people after the sale, there shall, nevertheless, be no objection in the assertion of pre-emption by the other partner. Has such a partner (claiming pre-emption) the right of discrimination so that he may assert his right of pre-emption in relation to one of the buyers leaving the other or not? There are two alternatives rather two opinions, the first not being devoid of force.
Problem # 7 If a house is a joint property, one portion being independent and the other a charitable endowment. If the independent portion is sold, neither the person in whose favour the charitable endowment has been made, even if it were a single person, nor the Wall or agent of the charitable endowment shall be entitled to claim the right of pre emption. Rather, even if the portion of the charitable endowment is sold by a valid sale, there is hesitation in the establishment of the right of pre-emption for the holder of the independent portion. The stronger opinion is in favour of absence of such right if the endowment be specific and its holders be several.
Problem # 8 It is a condition in the establishment of pre-emption that the Shafi’ (i.e. the person asserting the right of pre-emption) must be capable of paying the price. So there is no pre-emption for an incapable person, even if he brings a guarantor or mortgage, except when the buyer agrees to wait. Rather it is a condition in a pre-emption that the person asserting the pre-emption must show up the price.
If he brings the excuse that it is lying in some place, and goes to fetch it, then if it were in the same town, he shall be waited for three days, but if it were in some town, he shall be waited until usually money may be brought from that place even for more than three days, provided that the place is not too far, so that if the buyer should grant him time, the delay may be harmful for his interest, If the Shafi’ fails to show up the price within the appointed period, he shall not be entitled to enjoy the right of pre-emption.
Problem # 9 It is a condition that the Shafi’ must be a Muslim, if the buyer happens to be a Muslim. So an infidel has no right of pre-emption against a Muslim, even if the latter has purchased the property from an infidel. The right of pre-emption is established for an infidel against an infidel, and for a Muslim against an infidel.
Problem # 10 Pre-emption is established for an absent person. He shall be entitled to assert the right after he is informed about the sale, even if after a long a time. If he has a general agent for claiming the pre-emption, and he obtains the information about the sale to the exclusion of his client, then he shall be entitled to assert pre-emption on behalf of his client.
Problem # 11 Pre-emption is established for an idiot, though he is not entitled to assert it except with the consent of his guardian, or his permission in case of his interdiction. Similarly, it is established for a minor, lunatic, though their guardian is entitled to assert pre-emption on their behalf. Of course, if the guardian be the executor, he shall not be entitled to assert pre-emption on behalf of his ward, except when it is in the interest of the ward, contrary to the father or the paternal grand-father, in whose case the absence of corruption is sufficient, but they should not give up caution for observing the interest of their ward. If the guardian of such persons fails to claim pre-emption until they come of age, then they shall be entitled to assert pre-emption.
Problem # 12 If the guardian is a partner of the ward, and he sells his share to a stranger, or if a general agent happens to be a partner of his client, and he sells the share of his client to a stranger, then there shall be hesitation in the establishment of the right of pre-emption for the ward (in both cases); rather its absence is not devoid of force.
Problem # 13 Pre-emption is asserted either by word, saying: “I have claimed the right of pre-emption,” or “I have taken the possession of such property”, or such other words that carry the sense of his ownership of the property, or obtaining the sold share through the right of pre-emption, or by means of an act through payment of the price and taking possession of the share so that the buyer may take his hand off from it and let alone the Shafi’ and the two shares. It is a condition to pay the price at the time of claiming the pre emption by words or action, except when the buyer agrees with the delay (in payment of the price). Of course, if the price is deferred, then apparently he shall be entitled to take possession of the property by means of pre-emption and become the owner of that share without any delay, and he shall be bound to pay the price at its appointed time, in the same way as it shall be permissible for him to take possession of the share and also make the payment of its price immediately.
Rather, it is permissible to delay taking its possession and pay its price at the appointed time, though it is more cautious to take its possession without delay.
Problem # 14The Shafi’ has no right of discrimination. Either he should take the whole or leave it entirely.
Problem # 15 What the Shafi’ is bound to do at the time of getting through pre-emption is the payment of the price prescribed at the time of the conclusion of the contract of sale, no matter whether the price of the share is less or more. But he is neither bound to pay what the buyer has paid as expenditure like the remuneration of the agent or the like, nor what the buyer has paid in addition to the price and what he has paid to the seller as donation after the contract. So also he shall be entitled to whatever discount the seller has granted out of the price, and the buyer shall not be entitled to deduct that discount (from the price).
Problem # 16 If the price is in kind like gold or silver or the like, the Shafi’ shall be bound to pay accordingly. If it is non-fungible like an animal, jewel, garments or the like, then with regard to the establishment of pre-emption and the necessity of paying their price at the time of sale or non-establishment at all, there are two alternatives, the latter being stronger.
Problem # 17 If the Shafi’ gets information about the sale, he must put up his demand immediately; otherwise, he shall lose his rig of pre-emption due to procrastination or delay without any reasonable cause or rational, legal or usual excuse, contrary to the case when the non-assertion of the pre-emption is due to some excuse, that includes lack of information about the sale, even if he has been informed by some unreliable person. The same is the case if he were ignorant of his right of pre-emption or lack of permissibility in delaying the assertion of his pre-emption due to procrastination. Rather to the same category shall belong the case when he had been under the misunderstanding that the price is exorbitant, while it turned out to be otherwise, or its being in form of ready money that was difficult to obtain as gold, but later it transpired to be otherwise, etc,
Problem # 18 Pre-emption is a right that drops with the elimination of the Shafi’ Rather if he agrees at the very beginning with the sale to a stranger or he is offered to buy the share and he declines, he shall no more have the right of pre-emption. There is also a strong reason for its elimination by the Iqalah of the seller and buyer or returning of the object of sale by the buyer to the seller due to some defect or any other cause.
Problem # 19 If the buyer effects some change in what he had purchased, then in case the change is in the form of sale, the Shafi’ shall be entitled to get the object from the first buyer on the price paid by him. So the second purchase shall be nullified. He may also get the object from the second buyer on what he had paid. In that case, the first transaction shall be valid. The same shall be the case if the sales were more than two. In that case the Shafi’ shall be entitled to demand the object from the first buyer on the price paid by him. In that case, all the subsequent sales shall be nullified. He may also get it from the last buyer, in which case all the preceding sales shall be valid. He may also get it from the middle buyer, in which case the preceding sales shall be valid and the subsequent ones invalid. The same shall be the case if the transaction were other than sale, as a charitable endowment, etc., in which case the Shafi shall be entitled to get it by pre-emption, and what had been done by the buyer shall be cancelled. Each change may be valid in the absence of a claim of pre-emption; otherwise, it shall be invalid ab initio. But there is hesitation (in the validity of this rule).
Problem # 20 If the thing purchased is fully destroyed in a way that nothing of it is left behind at all, the right of pre-emption shall also drop. If it were after the assertion of the pre-emption and the destruction occurred due to an act of the buyer, or without his act but due to the procrastination in the delivery after the assertion of the pre-emption with all its conditions, then the buyer shall be held responsible for it. If, however, something of it is left behind, as in the case of a house that has been razed to the ground, but its courtyard and debris are still there, or it has become defective, then the right of pre-emption (of the Shafi’) shall not drop, and he shall be entitled to assert pre-emption and get what has remained of the house, for example, in the form of the courtyard and the debris for the whole price without any responsibility of the buyer. If it takes place after the assertion of the pre-emption, the buyer shall be responsible for the payment of the cost or the compensation for the defect, if it were due to his act, rather, even without his own act due to procrastination (in its delivery), as mentioned earlier.
Problem # 21 According to the more cautious, if not stronger, opinion, it is a condition in the assertion of pre-emption that the Shafi’ must have knowledge about the price at the time of his assertion of pre-emption. So if he says: “I have taken this object whatever may be its price”, it shall not be valid, even if he gets the knowledge subsequently.
Problem # 22 The right of pre-emption is transferable by inheritance, though there is hesitation in this rule. The procedure of its inheritance is that at the time of its delivery to the heirs the property is divided among them according to their respective shares as prescribed by Allah under Inheritance. If a deceased person leaves behind a wife and a son, the price shall belong to her and the rest shall belong to the son. If a deceased person leaves behind a son and a daughter, then the male shall get twice as much as a female. The right of pre-emption cannot be exercised by a few of the heirs as long as the other heirs do not agree. If some of the heirs excuse (the buyer) and forgo their right of pre-emption, then there is hesitation in the establishment of the right for the others who do not excuse.
Problem # 23 If the Shafi’ sells his share before getting it through preemption, then apparently his right of pre-emption shall drop, particularly when he does so after having the knowledge about his right of pre-emption.
Problem # 24 It is lawful for the Shafi’ to reach a compromise with the buyer on his right of pre-emption against some compensation or without it, and its effect shall be the elimination of his right of pre-emption. He does not require a separate intention for forgoing his right of pre-emption. If he has reached the compromise on forgoing the right of pre-emption, or giving up its demand, it shall be lawful, and he shall be bound to fulfill it.
If he does not intend to give up his right, and gets hold of the property through exercising the right of pre-emption, then whether it shall be effective, and as he has committed a sin by not fulfilling what he had undertaken, or it will not be effective, there are two alternatives, the first one is better in the first case, rather in the second as well, when the intention is to give it up with the subsistence of the right, and not to make it an indirect declaration for its elimination, the right of pre-emption shall drop).
Problem # 25 If a house is the joint property of a present and absent persons, and the portion of the absent person was in the possession of a person who has sold it claiming to be his agent, there is no objection in purchasing it from him, and effecting different kinds of changes in it as long as he does not have knowledge about his falsehood.
The difficulty lies in whether it is permissible for the partner to assert his right of pre-emption and getting it from the buyer or not? The second alternative is more in keeping with the guiding principles.
Conveyance is a mutual agreement on the mutual surrender of ownership of a real estate or usufruct or relinquishing a debt or right, etc. It is not a condition that there be a dispute (between the two parties).
It may be executed in respect of anything, except what has been excluded, the details of which shall follow, and in respect of any matter except what renders a lawful thing unlawful or an unlawful thing lawful.
Problem # 1 Conveyance is itself an independent contract and a separate topic. So neither the rules of the other contracts are affiliated with it, nor do their conditions apply to it, even if it contains their advantages.
So the conveyance having the advantage of a contract of sale does not admit of the rules and conditions of sale, and so the options particularly meant for sale do not apply to Conveyance, like the Options of Meeting, Animal, or Pre-Emption.
So also there is no condition of actual possession of the two things exchanged in it as is required in the exchange of gold and silver.
The conveyance having the advantage of a Gift (Hibah) does not admit of actual possession of the property as required in a Gift.
Problem # 2 Conveyance is a contract that requires Declaration and Acceptance generally even when it contains the advantage of release from a liability and relinquishing a right, according to the stronger opinion.
So the release from the liability of a debt or relinquishing a right, though not dependent on Acceptance, but when executed by way of Conveyance are suspended until Acceptance is accorded to it.
Problem # 3 In Conveyance no special words are required, and it is executed by any words conveying the sense of mutual surrender of something by transfer or agreement between two parties, as by saying: “I have entered into Conveyance with you on the house or its usufruct for such”, or whatever conveys this sense.
Problem # 4 A contract of Conveyance, binding for both the parties, is not revocable except by Iqalah or option, even in case it contains the advantage of a lawful Gift. Apparently it admits of all options except the Options of Meeting, Animal and Delay that are exclusively meant for a contract of sale.
There is hesitation in the establishment of indemnity in case of appearance of a defect in the property subject of Conveyance or its equivalent; rather, its non-establishment is not devoid of force, as, according to the stronger opinion, its return due to infliction of some calamities of the year is also not established.
Problem # 5 What is concerned with a Conveyance is a property, usufruct, a debt or a right, and in all suppositions, it may be accompanied by a consideration or without it. In the fist case, the consideration is a property, usufruct, debt or right. All these forms are lawful.
Problem # 6 If a Conveyance concerns a property or usufruct, it shall have the advantage of its transfer to the person executing Conveyance, regardless whether it is accompanied by a consideration or is without it.
Similar shall be the case, if it concerns a debt on some one other than the person in whose favour Conveyance has been executed, or a transferable right, as the two rights of interdiction and exclusion. If it concerns a debt on the person executing Conveyance, it shall have the advantage of its release.
The same rule shall apply to the right that can be relinquished as the two rights of pre-emption and option.
Problem # 7 A contract of Conveyance is valid if it concerns merely the usufruct of a property or the open space, in the same way as Conveyance executed for residence in his house or that a person may use a garment for a period of time, or he may place the logs of his roof on his wall, or the rain water of his house may flow on the roof of that person’s house, or that his rain pipe may have an outlet in the courtyard of that person’s house, etc., or a flank of his house may be in the open space of his property or the branches of his trees may extend up to the open space of his land, etc. All this is valid with or without a consideration.
Problem # 8 A Conveyance is valid in respect of rights that can be transferred and relinquished, so that it is valid in respect of rights that cannot be transferred or relinquished, as the right to demand a debt, or the right of recall in a revocable divorce, or the right of recourse for ransom in a Khul’, etc.
Problem # 9 All the conditions required in the two parties in a contract of Sale are also required in the two parties executing a contract of Conveyance.
Problem # 10 Apparently a contract of Conveyance may be executed by an unauthorized person, even in respect of relinquishing a debt or surrendering a right, and has the advantage of releasing or relinquishing in cases where execution by an unauthorized person is not applicable.
Problem # 11 A Conveyance may be executed in respect of fruits and vegetables, etc before their existence, even within a single year and without an addition, though it is not allowed to sell them.
Problem # 12 There is no objection in excusing in a Conveyance for ignorance in case of inability of both the parties executing it to have any knowledge about the object for which Conveyance is executed at all, as the goods of one of the parties is mixed with that of the other, and they do not know their respective amounts, and so they enter into a contract of Conveyance for having an equal or different shares in it. According to the most apparent opinion, the same is the rule when it is not possible for both of them to have knowledge about the goods due to unavailability of scales and measure. It is not far from being excusable even when at present they are able to know its amount.
Problem # 13 If a person owes a debt to another, or has some property of another with him whose amount he knows, but not the other person, and so they enter into a contract of Conveyance for less than what is lawfully right, it is not lawful for him to receive more than that except when the creditor or owner knows it and agrees with it. The same is the case when he does not know the amount of both, but has brief knowledge that what is agreed upon is more than the actual amount of Conveyance. Of course, if he has anyhow agreed to enter into a compromise on his actual right, in a way that if the actual position comes to light he shall have a compromise on it with pleasure, the surplus shall be lawful to him.
Problem # 14 If a person reaches Conveyance to charge extra on the growth of his commodity, then, according to the stronger opinion, the rule of Ribä’ shall apply to it, and it shall be declared void. Of course, there shall be no harm in case of ignorance about the amount, though there is likelihood of charging extra, as when each of them has a food of the other, but both of them are ignorant of its amount, and so they enter into a Conveyance that whatever is with each of them shall belong to him despite the possibility of some surplus.
Problem # 15 It is lawful to enter into a Conveyance in respect of a debt for debt, regardless whether both of them are prompt or deferred, whether they are of the same or different categories, and whether they are owed by a single person or two persons, as when he owes an amount of wheat from Zayd who also owes an amount of barley to Amr, so he enters into a Conveyance for what he owes from Zayd for what he owes to Amr. It would be valid in case of two things of the same category that can be measured or weighed with a surplus. Of course, if he enters into a Conveyance in respect of part of a debt, as when he owes some Dirhams with deferred payment from another, and enters into Conveyance for half of it for prompt payment, then there shall be no objection if he intends to relinquish the surplus and release from its liability, and suffice with something deficient (i.e.half) as is intended usually in such compromise, and not to charge anything between the surplus and deficient.
Problem # 16 It is allowed for two partners to reach a Conveyance on that to one of them should belong the capital while the other should have the loss or gain.
Problem # 17 It is allowed for two litigants on debt, property or usufruct to enter into a Conveyance against the object of litigation or something else including even the denial of the defendant, and thereby the litigation is dropped. Similar is the case with the right of oath enjoyed by the complainant against the denying party, and after it the complainant shall have no right to file the case again. This is, however, an apparent solution through which the litigation is apparently cut short, while the actual situation does not change. So if a person claims that another owes him a debt, but the other person denies it, and then they reach a compromise on half of it. This Conveyance shall lead to the termination of the claimant’s claim, but if he be on the right, half of it shall remain as a liability on the defendant, even if he believes that he is not on the right, except when it is supposed that the claimant has entered into a Conveyance on his entire property. If his claim was actually wrong, whatever he has received from the denying person shall be forbidden for him, except when it is supposed that he was actually clean at heart and not that his consent was meant to be released of his false claim.
Problem # 18 If the defendant says to the claimant: “Enter into a Conveyance with me”, “it shall not amount to his acknowledgement of the right, as it has already been mentioned that a Conveyance is valid in spite of denial. But if he says: “Sell it to me,” or “Make its owner”, it shall be an admission that the thing is not owned by him, but whether it shall amount to acknowledgement of the claimant’s ownership, there is hesitation in it.