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Relinquishment in the Shafi’i school

Answered as per Shafi'i Fiqh by Qibla.com

Answered by Shaykh Amjad Rasheed
Translated by Sidi Moustafa Elqabbany

Translator’s Introduction

This question deals with entering into contracts. The Shafii school is rather particular about the wording of such contracts and in its insistence that the transacting parties actually pronounce these words.


Would you please clarify the issue of relinquishment (Ar. raf` al-yad) in the Shafii school? Relinquishment involves exchange of goods and therefore resembles sale. However, it is permissible to relinquish filth (in exchange for something else) but it isnt permissible to sell it. So whats the difference between the contracts of relinquishment and sale, and how is each of the two performed? Also, if its necessary to utter certain words in order for these contracts to be binding, then is it permissible to use a language other than Arabic?

The practical reality in the West and in other places is that goods are placed on shelves in a store, a customer enters the store, selects the goods he wants, pays the clerk the total, and then leaves with the goods. This sort of thing often happens without any exchange of words at all, let alone statements like, I sell you this, or I hereby relinquish my right over such-and-such. Are such types of sale and relinquishment permissible in our school, and if not, how does one buy and sell with those whose norms are like this?

In the Name of Allah, Most Gracious, Most Merciful

The difference between sale and relinquishment is that one of the conditions of sale is that the item being exchanged must be pure. Thus, it is not valid to sell actual filth, such as dogs, or something filthy that cannot be purified, like filthy oil (according to the relied upon position). As for the issue of relinquishment, it is but a legal outlet that our imams have mentioned in order to permit selling filth. They did so out of commitment to the principles they established that require a contract to include an offer and acceptance. (For mere exchange does not constitute a contract.) Additionally, the good being sold must be pure or capable of being purified; otherwise, the sale is invalid. Selling filth or filthy substances that cant be purified is invalid since: (a) every sale requires a statement that identifies it as such, but (b) such wording would actually invalidate the transaction because an object of filth is not legally saleable.

Due to peoples need to exchange some goods that are either filth in their own right or filthy and cannot be purified, scholars mention the issue of relinquishment as a legal outlet to permit such exchange. They state that it is permissible to relinquish filth, such as dogs, or filthy substances, like those mentioned earlier, in exchange for monetary compensation. As Al-Bajuri mentions, the actual way to conduct such a transaction is, for the possessor to say, I relinquish my right to this for such-and-such, and for the other party to say, I accept. (Vol. 1, p. 356) The erudite scholar Ibn Qasim mentions in his supercommentary on the Tuhfa that it is not far-fetched to say that specific wording is required when relinquishing ones possessions. Possession (Ar. ikhtisas) is that which one controls in exclusion to others but is not property (Ar. mal), such as articles of filth. Thus, anyone who controls such items is not described as their owner, but rather, they are called his possessions. Because of this, such items are respectable, and it is not permissible to transgress against them. For example, it would be forbidden to transgress against a dog (i.e. harm it) that is validly possessed by someone, such as for when it is for hunting. However, as is mentioned in the chapter on wrongful seizure of property (Ar. ghasb), one is not responsible for replacing anothers possessions that one ruins because they are not actually property.

The question then arises: Given that the whole point of sale is exchange, what is the difference between sale and relinquishment? In other words, what is the point in prohibiting the sale of articles of filth while stating that relinquishing them for compensation is permissible? The value of this distinction becomes evident during the wording of contracts, for our imams often give preponderance to the letter of the contract over its spirit. So whoever says, I sell you this dog for such-and-such, has not validly entered into a sale because his wording entails sale while one of the conditions of a sale is that the object not be filth, as was mentioned. On the contrary, if he were to say, I relinquish this dog for such-and-such, the relinquishment is valid. Scholars, including those of our school, have long discussions regarding this principle, sometimes giving preponderance to the letter of the contract and sometimes to its spirit. However, this is not the proper forum to extrapolate this principle further.

This completes the answer to the first and second parts of the question.

As for the ruling of entering into a transaction of sale or relinquishing articles of filth in other than Arabic, this is absolutely permissible, even for one fluent in Arabic, as our imams have clearly stated. The erudite scholar, Al-Khateeb Al-Shirbeeni states in the Mughni, Point: It is absolutely permissible to enter into transactions in other than Arabic while being competent in Arabic.

As for the scenario given at the end of the question, the position of our school is that it is invalid. As was mentioned, a condition for the validity of a sale is a proper offer and acceptance. The scenario presented by the questioner doesnt involve the wording of a sale, and is therefore invalid. This is the relied upon and asserted position in our school. In contradistinction, the position of the majority of scholars is that sale is valid by mere exchange (Ar. mu`atah) and specific wording is not required. However, even those scholars (who permitted exchange) differed, some of them allowing it for large and small exchanges, the precious and the mundane, while others said it was only permissible for the exchange of mundane items. By exchange, what is meant is what the Mughni mentions when quoting Qadi Majlis (one of our early imams) Al-Dhakhair: for the two parties to agree upon the goods and a price and to exchange them without an offer or acceptance, or possibly one of the two statements. (Vol. 2, p. 3)

A group of our imams, such as Al-Nawawi, have elected the permissibility of exchange without spoken offer and acceptance. However, as Al-Jalal Al-Mahalli clarifies, he (i.e. Al-Nawawi) limited its applicability to cases that people actually consider [an exchange] to effect a sale, as opposed to the exchange of livestock or real estate. Others limited the applicability to mundane items, like small amounts of bread or a bunch of herbs.

Thus, based on the position of the majority of jurists, as well as what some of our imams have elected regarding the permissibility of such an exchange, we can conclude that the scenario given in the question is permissible and valid. This is, in fact, the form of the majority of transactions today. However, one should make note of the extent of applicability that scholars have differed over. The erudite Shafii scholar, the Grand Sheikh of Al-Azhar University in his day, Ibraheem Al-Bajuri says:

It is necessary to follow those who permit it in order to avoid sin, for it is one of the matters that is widely prevalent. There is no might or power except through Allah! It has even gone so far that if one to whom Allah gives success wants to use the appropriate wording, people take him to be a laughingstock.

If one takes the position that exchange without spoken offer and acceptance is permissible, it is sufficient for the two parties to agree mutually on the price, such as when it is written on the item, as is presently commonplace. Thus, according to the position that permits such exchange, explicitly mentioning the price isnt a condition for validity, as Ibn Hajar mentions in the Tuhfa, [Sale] is not affected through exchange without spoken offer and acceptance, and that is for the parties to agree upon a price even if both parties are silent. (Vol. 4, p. 217)

As the Tuhfa indicates (Vol. 4, p. 218), the position that permits exchange without spoken offer and acceptance in sale also applies to other financial transactions. As explicitly mentioned in the Mughni (Vol. 2, p. 3), it therefore applies to renting, collateral, gifts, and the like. It seems that the position that permits it also applies to relinquishment of possessions, for the legal reason that allows exchange without spoken offer and acceptance is also present in this case, namely that the requirement of pronouncing specific words has not been decisively established, and so the matter returns to what is commonly deemed acceptable (Ar. `urf).

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