Thursday, January 27, 2005

Conditions for the contract to take effect

Immediate effectiveness: the seller is free and owns the goods sold or has jurisdiction to sell it.

Jurisdiction to buy and sell is either by being appointed by the owner (agency/delegation), or by law (trusteeship).

Trusteeship by fatherhood or by judgeship over a child.

Trusteeship of fatherhood refers to the father, grandfather or their appointed trustee for a legally incompetent person. Trusteeship of judgeship refers either to the judge or the trustee he has appointed for a legally incompetent person. The order of rank of trustees is according to their expected sympathy of the child: the father is first, then his chosen trustee, then the chosen trustee of the father's chosen trustee. After that the grandfather, then his chosen trustee, then the chosen trustee of the grandfather's chosen trustee. After that follows the judge and finally the trustee appointed by the judge, because it is mentioned in hadith that "the ruler is the guardian of the one that does not have one". Trusteeship has several conditions of soundness:
  • The trustee is free (not a slave), because he does not have guardianship.
  • The trustee is sane, so that he can act responsibly and be held accountable.
  • The trustee is a muslim if he represents a muslim, because (4, 141)

    { وَلَنْ يَجْعَلَ اللَّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلًا }

    Which could be tralslated literally as, "Allah does not make a way for the non-muslims to subdue the believers"

  • The person under the trustee is below puberty, because otherwise he has the right to make his own dealings.
  • The transaction is not harmful to the represented, since the Prophet (may Allah raise his rank) said, "the one who does not show mercy to our small ones, is not of us."

Pending effectiveness: The sale or purchase of an outsider is endorsed by the owner's acceptance.

This happens when an outsider sells something that belongs to another, without his prior permission. This transaction becomes legally effective only if the owner endorses it afterwards, such as by saying "I accept". This is valid because it is mentioned in hadith that Prophet Muhammad once delegated another to buy for him a sheep and gave him one dinar to do so. What the man did instead was buy two sheep and sell one of them, so he came back with the dinar and a sheep. The Prophet was pleased with what he had done and supplicated Allah to bless his selling. It is mentioned that the man after that used to profit even if he bought soil.

The conditions for the endorsement to be valid

  • The buyer and seller endorses the transaction of the outsider.
  • The owner is alive at endorsement time (the endorsement is not inherited).
  • The goods sold are intact. If they were destroyed or consumed in the hands of the buyer, then the owner may require either the buyer or seller to replace it.