Sale of Commodities in Organized Markets - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (20): Sale of Commodities in Organized Markets Appendix (B) The Shari’ah Basis for the Standard ■ The basis for the permissibility of international sales transactions that fulfil the required Shari’ah elements and conditions of the validity of sales is their inclusion within the fold of the sale with respect to which the Words of Allah, the Exalted, were laid down: {“...Where Allah has permitted trading...”}},(2) as well as His Words: {“...Eat not up your property among yourselves unjustly except it be a trade amongst you, by mutual consent...”}}.(3) The implementation of the international conventions on sales or the implementation of the laws of some countries does not require prohibition of these sales if they do not contain what conflicts with the rules and principles of the Shari’ah, and this is due to the Words of Allah the Exalted: {“O you who believe! fulfil (your) obligations...”}},(4) with the proviso “except what legalizes the prohibited and prohibits what is legal”,, due to the words of the Prophet (peace be upon him): “Muslims shall gal” abide by their conditions, except for a condition that legalises the prohibited or prohibits the lawful”. lawful” (5) ■ The basis for the prohibition of delaying of both counter-values is that in this there is the creation of two liabilities, along with what the jurists have mentioned with respect to the impermissibility of delaying the capital of Salam. Further, there is opposition to the conditions required by the contract. The basis for the conditions of spot contracts in the commodity (2) [Al-Bqarah (The Cow): 275]. (3) [Al-Nisa` (Women): 29]. (4) [Al-Ma`idah (The Table): 1]. (5) This Hadith has been narrated by a number of Companions. It has been related by Ahmad [1: 312]; Ibn Majah with a hasan chain of transmission [2: 784], Mustafa Al-Babi Al-Halabi edition, Cairo (1372 A.H./1952A.D.); Al-Hakim (Hyderabad, India edition, 1355 A.H.); Al-Bayhaqi [6: 70, 156], [10: 133], Hyderabad, India edition, 1355 A.H.); AlDaraqutni [4: 228], [3: 77], Dar Al-Mahasin Lil-Tiba’ah, Cairo (1372 A.H./1952 A.D.). 552
2. Shari ’ah Standard No. (20): Sale of Commodities in Organized Markets markets is that these are general conditions of sale and are permitted according to the Shari’ah. ■ The basis for the permissibility of contracts in which one of the countervalues is deferred is the validity of Bay’ Mu’ajjal and Salam. ■ The basis for the permissibility of forms of transactions mentioned in the Standard related to international commodity sales is that they are concluded in accordance with the principles of Wakalah (agency), sale with a deferred period, Murabahah sale, and all these are valid contracts. ■ The basis for the obligation of issuing an offer by the agent for seeking a sale on his own account and its acceptance by the principal as a seller is the distinction between the liability of the seller (the principal) and the liability of the buyer (the agent). ■ The basis for the obligation of specifying the wages of the agent, and not merging it with the price is the Hadith: “He who hires a hired worker must make known to him his wages” wages”.(6) This rule of the contract of Ijarah is applicable to agency for wages. ■ The basis for the prohibition of stipulating the lack of delivery in commodity sales is that this negates the requirements of sale, which are the transfer of ownership to the buyer and his right to undertake transactions in the sold commodity. ■ The basis for prohibiting the stipulation of a guarantee by the agent is that the agent is a trustee and does not provide a guarantee except for cases of transgression, negligence or going against the constraints of agency. ■ The bases for the prohibition of deferred transactions in currencies are the Hadiths prescribing the obligation of possession in their sale. This has received support from a resolution of the International Islamic Fiqh Academy emphasising this.(7) ■ The basis for the prohibition of derivatives is that these are binding promises that are converted to sale contracts pertaining to the future without an offer and acceptance. The Shari’ah substitutes mentioned in the Standard for derivatives are stated in a resolution of the International Islamic Fiqh Academy.(8) (6) Related by Ibn Majah in his “Sunan” [2: 817]; See also “Majma’ Al-Zawa`id” by AlHaythami [4: 98], Dar Al-Rayyan Lil-Turath and Dar Al-Kitab Al-’Arabi. (7) The International Islamic Fiqh Academy Resolution No. (63) 1/7. (8) The International Islamic Fiqh Academy Resolution No. (63) 1/7. 553
3. Shari ’ah Standard No. (20): Sale of Commodities in Organized Markets ■ The basis for the impermissibility of options is that the subject-matter of the contract in them is not wealth that can be deemed compensation according to the Shari’ah.(9) ■ The basis for the impermissibility of swaps is that no actual exchange of counter-values takes place thereby. Such swaps, as well, usually constitutes interest payment, ’Inah, and deferment of one of the counter-values. (9) The International Islamic Fiqh Academy Resolution No. (63) 1/7. 554