Question:
As-Salamu ‘alaykum. If verbal offer and acceptance between buyer and seller is a condition for a valid sale how can a Shafi’i purchase or sell anything online? I take other schools’ views on this issue but wondered if there are variant opinions on sales within our own school. Jazak Allahu khayran.
Answer:
The ijab [offer to sell] and qabul [acceptance] are integral elements in a bay [sale]. (Majmu 9/190; Mughni al-Muhtaj 2/323-33; Tuhfat al-Muhtaj 4/215-19) Allah says in the Quran (Surat al-Nisa 29),
يَا أَيُّهَا الَّذِيْنَ آمَنُوْا لَا تَأْكُلُوا أَمْوَالَكُمْ بَيْنَكُمْ بِالبَاطِلِ إِلَّا أَنْ تَكُوْنَ تِجَارَةً عَنْ تَرَاضٍ مِنْكُمْ
“O you who believe do not consume wealth between you through falsehood; except, that it is trade/commerce which you are mutually satisfied with.”
Also, the Prophet Muhammad said,
إِنَّمَا البَيْعُ عَنْ تَرَاضٍ
“Verily, trade is through mutual satisfaction.”
Ibn Hibban has declared this hadith as sahih [rigorously authentic]. It has also been related by Ibn Majah and Bayhaqi in al-Sunan al-Kubra. Al-Busiri declared it authentic in Az-Zawa’id saying, “It is Sahih and the men in its chain are trustworthy.”
The buyer and seller’s satisfaction is stipulated in a sale. Yet, an individual’s satisfaction may be something concealed, and in need of verification. For this reason, the wordings of contract best identify satisfaction with a sale. As a result of this deduction, sales lacking a spoken offer and acceptance are generally not considered valid. (Majmu 9/190; Mughni al-Muhtaj 2/325; Tuhfat al-Muhtaj 4/216)
The Shafiyyah considered contractual wordings, and what is sufficient to execute a contract. Moreover, they have mentioned the possibility of executing a contract through written communication. Shaykh al-Islam Zakariyya al-Ansari said (Fath al-Wahhab 1/157),
ولو كتب إلى غائب ببيع أو غيره صح ويشترط قبول المكتوب إليه عند وقوفه على الكتاب إلخ
“When he writes to one who is absent regarding a sale or other than that, it is valid. The letter’s recipient’s acceptance [of the sale], at the time when he reviews the letter, is stipulated.”
It has been further explained that this consideration is made since the wordings of contract are included in the correspondence. Their written form is adequate to execute a contract. (Hashiyat al-Bujayrimi 2/169; Hashiyat al-Jamal 3/10) Imam Nawawi mentioned (Majmu 9/197),
وهو الأصح أنه يصح البيع ونحوه بالمكاتبة لحصول التراضي
“…the relied-upon view [al-asahh] is that a sale and its like are valid through written communication that achieves mutual satisfaction….”
A concern for online buying and selling, unrelated to the wordings of contract, may be merchandise that is not present [bay’ al-ghaib], including something present that has not been seen. Seeing goods before a contract’s execution suffices, specifically for non-perishable commodities. (Mughni al-Muhtaj 2/357-58)
Imam Shafi has two opinions [qawlayn] on buying and selling what has not been seen. The first is transmitted in his Imla and as a qawl qadim, where he opined that it is valid. Also, this is the opinion of Abu Hanifa, Malik, and Ahmad. From amongst the Shafiyyah, various authorities preferred this stance and judged according to it, including Imams Baghawi and Ruyani. In his Umm, Imam Shafi said that it is invalid, and this view is transmitted from Buwayti. It is also an ikhtiyar of Muzani. (Rawdat al-Talibin 3/35) Imam Shafi’s view of its invalidity is the relied-upon stance [qawl azhar]. (Mughni al-Muhtaj 2/358) This may well have been his final opinion on the matter. Bayhaqi mentioned (Marifat al-Sunan wa al-Athar 3/272),
أباح الشافعي بيع الغائب في القديم وكتاب الصلح والصرف وغيرهما ثم رجع فقال لا يجوز لما فيه من الغرر
“Imam Shafi permitted the sale of something absent in the qadim and in the books of sulh, sarf, etc. Thereafter, he retracted and then opined that it is not permissible due to the harm found in it.”
Regarding the alternate opinion [muqabil al-azhar], it is for when the article has been described in detail to another with the consequent decision resulting in an exchange. (Majmu 9/353) Accordingly, khiyar [a right to accept or rescind] is then granted when the merchandise is seen. (Mughni al-Muhtaj 3/357; Tuhfat al-Muhtaj 4/264) The right to khiyar is granted regardless as to whether or not the merchandise is found as it was described. (Majmu 9/355)
The issue of khiyar for a sale conducted through written correspondence has been discussed by Shaykh al-Islam Zakariyya al-Ansari and others. Shaykh al-Islam mentioned that the letter’s recipient has a right to khiyar so long as he is in the majlis al-qabul [session of acceptance]. And, the writer has a right to khiyar which extends until the letter’s recipient’s khiyar has ended. (Fath al-Wahhab 1/157) This may apply to someone who has seen the merchandise he intends to purchase, in accordance with the qawl azhar mentioned above. In the instance that he has not seen the merchandise, then consideration for the muqabil al-azhar would need to be made. Therefore, khiyar is at the time when one views the merchandise.
In conclusion, many internet purchases (or sales) may be contracted through the means of written communication, for instance e-mail. And, this is an acceptable means by which to execute a contract. There are two opinions of Imam Shafi on whether or not one may sell absent merchandise. The relied-upon view [qawl azhar] does not permit it, while the other view does. The other view [muqabil al-azhar] is strong enough for one to practice upon.
Allah knows best.
Shafiifiqh.com Fatwa Dept.