In
general, the sale of non-existent objects/goods is prohibited due to
Gharar(Uncertainty). However, to facilitate certain types of business
transactions, exceptions were given through Salam and Istisna. Many jurists have also contended that for a
lawful sale transaction, it is important that the item of sale must be fully
known leaving no room for ambiguity but that the physical possession by the
seller is not a necessary condition of valid sale. Evidence of permissibility can
be found in the Hadith narrated on the authority of ‘Ibn ‘Abbas:
The Messenger of Allah (PBUH) came to Madinah and found its
inhabitants entering salam contracts (with the price paid in advance) in fruits
for one, two and three years. He (pbuh) said: “whoever enters into a salam
contract, let him specify a known volume or weight, and a known term of
deferment”
Salam
legally refers to the sale of described merchandise which under the seller's obligation
and is enacted with the expression of Salam or Salaf
There
are certain conditions that must be met in order for Salam to be valid;
1. That
the price be put up
2.
The quality of the goods be fully specified leaving no ambiguity which may lead
to dispute
3.
Salam can be effected only in those goods in which the quality and quantity can
be specified exactly
4.
The goods should be generally available in the market at the time of delivery
5. That
the price of the merchandise is handed over when the agreement is made.
6. That
the seller is able to deliver the merchandise when the time comes.
The
jurists reasoned by comparison from the permissibility of salam to the
permissibility of Istisna which may be translated as “commission to
manufacture”. In Istisna, the price is paid in installment as the work
progresses in manufacturing or building an otherwise non-existent object.
These two contracts are
permitted as exceptions to the general rules of sale. Therefore, there are many
conditions which must be met for Salam and Istisna contracts to be valid as
listed above.
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