Home » Hanafi Fiqh » Askimam.org » Clarification on Istisna’ contract

Clarification on Istisna’ contract

Answered as per Hanafi Fiqh by Askimam.org

Reference my question “Real estate Buy back scheme” at http://www.askimam.org/public/question_detail/43035. Allah bless you for the comprehensive answer. One clarification is needed as below:

Buyer has executed a contracy with Seller to buy a shop in a Plaza which is being constructed. At what stage is it permissible for Buyer to sell the shop. Is it when he has made full payment or when physical structure of shop exist or when the shop has been physically handed over to him and he can use it.

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Before we answer your question, it is vital that you adequately understand the fundamental difference between a normal sale (buyingselling) and an Istisna’ sale. Istisna’ sale is different from a normal sale. In normal circumstances, for the sale to be valid it is necessary that the commodity (intended to be sold) is in existence and in a physical or constructive possession of the seller. Istisna’ sale on the other hand is an exception to this rule. In Istisna’ a buyer asks a manufacturer to build something for him which is not in existence as yet. Despite this, the sale comes into effect post offer and acceptance from the respective parties with the condition that the non-existent commodity has been accurately specified in detail.

In the enquired situation, Party 2 has already entered into a contract of Istisna’ with Party 1. Thus far, the shop does not exist. Therefore, Party 2 cannot sell the shop back to the Party 1 (builder) or a 3rd party unless the shop is built, either partially or completely, and he takes the shop in his possession.[i] This is because a sale of something which has not yet come into existence or is not in possession is impermissible by default in Shariah.[ii]

And Allah Ta’āla Knows Best

Naved Akhtar Ibn Shabbir.

Student – Darul Iftaa

Shillong, India.

Checked and Approved by,

Mufti Ebrahim Desai.

 

______

 میں کوئی خرابی نہیں؛ لیکن اگر مشتری اس عقد کی مبیع (شئ مصنوع) کو جو ابھی وجود میں نہیں آئی ہے، کسی تیسرے شخص کے ہاتھ فروخت کرنا چاہے تو یہ معاملہ جائز نہ ہوگا؛ کیوںکہ یہ بیع قبل القبض کے درجہ میں ہے

[ii] فتاوی قاسمیہ جلد 19، ص 635-636

 

 

This answer was collected from Askimam.org, which is operated under the supervision of Mufti Ebrahim Desai from South Africa.

Read answers with similar topics: