In the name of Allah, the Most Gracious, the Most Merciful. All praise is due to Allah. I bear witness that there is no god but Allah, alone, without partner, and I bear witness that Muhammad is His servant and Messenger ﷺ.
Reconciling and giving preference between hadiths:
In this section Imam al-Shafi’i deals with the question of the prohibition of selling what the seller does not have, showing his method of reconciling hadiths that appear to conflict, or of giving preference between them when reconciliation is impossible.
The main points Imam al-Shafi’i dealt with in this section:
- An introduction to al-Shafi’i’s method of dealing with disagreeing hadiths: It shows that a prohibition of a matter may be explained in another hadith, and that the default is to take hadiths according to their generality and apparent meaning until a proof comes for specification or interpretation; and that reconciling the proofs takes precedence over giving preference between them.
- The prohibition of muzabanah: Imam al-Shafi’i explains the meaning of muzabanah: selling dates on the tree for dried dates by measure, or selling grapes for raisins by measure. He shows that it is prohibited because of the usury (riba) and uncertainty (gharar) it involves, since the quantity of one of the two countervalues is unknown.
- The concession of ‘araya: Imam al-Shafi’i sets out the concession (rukhsah) allowing the ‘araya sale: selling fresh dates on the palm for dried dates by measure in quantities of less than five awsuq (sing. wasq, a measure of volume). It is a concession from the prohibition of muzabanah and an easing for those in need.
- Reconciling the prohibition of selling fresh dates for dried dates with the concession of ‘araya: Imam al-Shafi’i shows that the concession of ‘araya does not conflict with the prohibition of muzabanah, because ‘araya is a concession excepted from the general rule, and the prohibition of muzabanah is meant for everything other than ‘araya.
- The prohibition of selling what the seller does not have: Imam al-Shafi’i sets out the hadith of Hakim ibn Hizam, “Do not sell what you do not have,” and shows that this prohibition bears two meanings: selling what is not present with the seller and the buyer, and selling a specific item that the seller does not own. He shows that the prohibition applies to the sale of specific, identified items (a’yan), whereas the sale of something described and owed as a liability (al-mawsuf fi al-dhimmah), that is, salam (a forward sale), is permissible under conditions: that the goods be described and guaranteed by the seller, with a description by which they can be claimed when the term falls due, and that the capital be handed over in full in the session.
- The difference between the sale of specific items and the sale of something described as a liability (salam): Imam al-Shafi’i shows the difference between the sale of specific items, which is the sale of a thing identified in itself, and the sale of something described as a liability, which is the sale of a thing described with particular attributes without its identity being specified. He shows that the prohibition of selling what the seller does not have is specific to the sale of specific items, whereas the sale of something described as a liability (salam) is permissible under its conditions.
- Selling what is not present with the seller: Imam al-Shafi’i shows that selling what is not present with the seller bears two meanings: that the thing is owned by the seller but absent from the place of sale, or that the thing is not owned by the seller at all. He shows that the prohibition covers both cases, except where the thing is described so precisely that the buyer has an option of annulment if the description is not met.
- The rule “A general term is taken according to its generality as long as nothing specifying it has come”: Imam al-Shafi’i affirms this rule: the general is taken according to its generality and the apparent according to its apparent meaning until a proof comes that specifies it or interprets it otherwise.
- Reconciling the proofs takes precedence over giving preference: Imam al-Shafi’i affirms this rule: one does not resort to preference except when reconciling the proofs is impossible.
Additional clarifications:
- Muzabanah (clarification): Muzabanah is selling fresh dates on the palm for dried dates by measure, or selling grapes for raisins by measure. It is prohibited because of the usury and uncertainty it involves.
- ‘Araya (clarification): ‘Araya is selling fresh dates on the palm for dried dates by measure in quantities of less than five awsuq. It is a concession from the prohibition of muzabanah and an easing for those in need.
- Selling what the seller does not have (clarification): This is selling a thing that the seller does not own at the time of the contract, or that he is unable to deliver. It is prohibited because of the uncertainty it involves.
- The sale of something described as a liability (salam) (clarification): This is the sale of a thing described with particular attributes without its identity being specified, with delivery of the goods deferred to a known term and the price handed over in full in the session. It is permissible under its conditions.
- The option of annulment (khiyar al-faskh) (clarification): This is the right of one or both contracting parties to annul the contract within a known period, or when a cause requiring annulment exists.
Summary:
In this section Imam al-Shafi’i shows his method of dealing with disagreeing hadiths: reconciling them whenever possible, or giving preference when reconciliation is impossible. He applies this method to the question of selling what the seller does not have, and shows that the prohibition is specific to the sale of specific, identified items, and that the sale of something described as a liability (salam) is permissible under its conditions. He stresses the importance of understanding the Prophetic Sunnah and acting upon it, and that it clarifies the Qur’an, details it, restricts it, and specifies it. He affirms that reconciling the proofs takes precedence over giving preference, and that the general is taken according to its generality and the apparent according to its apparent meaning until a proof comes that specifies it or interprets it otherwise.
All parts of Summary of the Explanation of al-Shafi'i's al-Risala by Dr. Yasir Burhami