It is one of the basic
conditions for the validity of a sale in Shari‘ah that the commodity must be in
the physical possession of the seller. This condition has three ingredients:
Firstly, the commodity
must be existing.
Secondly, the seller
should have acquired the ownership of that commodity.
Thirdly, mere
ownership is not enough. It should have come into the possession of the
seller, either physically or constructively.
There are only two
exceptions to this general principle in Shari‘ah. One is Bai Salam and the other
is istisna’.
Bai Salam
Bai Salam (Arabic بيع سلم) is a sale
whereby the seller undertakes to supply some specific goods to the buyer at a
future date in exchange of an advanced price fully paid at the spot.
The buyer is called “rabb-us-salam”,
the seller is “muslam ilaih”, the cash price is “ra’s-ul-mal” and the purchased
commodity is termed as “muslam fih”.
Bai Salam is beneficial to
the seller because he receives the price in advance, and it is beneficial to
the buyer also, because normally, the price in salam used to be lower than the
price in spot sales. The permissibility of salam was an exception to the
general rule that prohibits the forward sales, and therefore, it was subjected
to some strict conditions. These conditions are summarized below:
Conditions of Salam
1. First of all, it is
necessary for the validity of salam that the buyer pays the price in full to
the seller at the time of effecting the sale. The basic wisdom behind the
permissibility of Bai Salam is to fulfill the instant needs of the seller. If the
price is not paid to him in full, the basic purpose of the transaction will be
defeated.
2. Bai Salam can be
effected in those commodities only the quality and quantity of which can be
specified exactly. The things whose quality or quantity is not determined by
specification cannot be sold through the contract of salam.
3. Salam cannot be
effected on a particular commodity or on a product of a particular field or
farm.
4. It is necessary
that the quality of the commodity (intended to be purchased through salam) is
fully specified leaving no ambiguity which may lead to a dispute. All the
possible details in this respect must be expressly mentioned.
5. It is also
necessary that the quantity of the commodity is agreed upon in unequivocal
terms. If the commodity is quantified in weights according to the usage of its
traders, its weight must be determined, and if it is quantified through
measures, its exact measure should be known.
6. The exact date and
place of delivery must be specified in the contract.
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