The Contract of Sale (Bay’)

• The Pillars of a Sale Contract:

According to Hanafi school of through,

a sale contract has two pillars:
offer
and
acceptance

According to the majority schools of throughs,

a sale contract has three pillars:
expression ( sighah ), which includes offer and acceptance
the contracting parties ( al-’aqidan )
and
the subject matter ( mahal al-’aqd ) or the property on which a sale
contract is concluded.
Way of expression in a sale contract

Offer and acceptance could be expressed:

verbally
by price tag without uttering words

by gestures such as in a stock exchange

through writings

through modern means of communications such as fax and internet

and
through machines
The conditions for the expression

The conditions for the expression

The offer and acceptance must be clear and should not be ambiguous.
The acceptance must be unconditional.

The connection between the offer and acceptance should take place in the
session of a contract ( majlis al-’aqd )

Both offer and acceptance should be made in the past

or present perfect tenses.
How many parties should be in a sale contract?

There should be more than one party to a sale contract.

Father, guardian, & judge can sell or buy for their own property for a minor

condition for the seller & buyer

complete legal capacity (ahliyyah)
Mature
and
sensible
according to Imam Abu Hanifa ,
age of maturity
18 for males and 17 for females,
according to Imam Malik, 17 for both males and females.
according to others scholars,
15 for both males and females
What is subject matter ( mubee’ ) & price ( thaman ) in a sale contract?

The subject matter is the thing sold ( mubee’ ).

The price ( thaman ), is a medium of exchange.

Example:

Book, sold item (mubee or subject matter)

and
RM 50.00, medium of exchange (thaman or price)

.
conditions related to the subject matter

subject matter and the price should be valuable properties.

subject matter should be in existence at the time of the sale.

Exception
salam and istisna’ contracts.

subject matter must be deliverable or capable of delivering.

subject matter should be known to the purchaser by description.

price should be known to both parties.
 Conditions for the execution of sale

Subject matter of sale should be owned by the seller.

Third parties should have no right in the property.

• Conditions for the validity of sale

the subject matter is sold for an unlimited time.
A sale should be free from coercion (ikrah ), mistake, and fraud.

In a credit sale, the terms of payment should be known, such as the duration of
instalments and the amount payable in each instalment;
otherwise it is invalid.
 Void conditions in a sale

The Shari’ah prohibits all those conditions that may favour one of the parties.
or
conditions that may lead to usury.
The Shari’ah also prohibits a sale contract that comprises two agreements,
one of which is a condition for the other.
For example,
a person is not allowed to sell an item on the condition that the purchaser sells
him something else to replace it
or
rents him the sold property,
or
lends him either its price or some other sum.