The Absolvement Clause in Islamic Commercial Law: Shart al-Bara'ah

Posted on: 10 June 2015

بسم الله الرحمن الرحيم

Did the jurists of our beautiful legacy discuss the issue? The answer is that they did. They termed it “shart al-bara'ah.” This comes as a chapter heading in many fiqh books. The discussion surrounding it even stretches back to the time of the Sahabah. Our predecessors in religion addressed this issue in such great detail, leaving behind a rich inheritance of information for us to benefit from and practice upon. 

A frequent practice in fiqh is that before introducing the legal intricacies of a point, the scholars discuss the language of the topic that is to be addressed. We have followed this; the first section in this article is an elucidation on the literal and legal meaning of “shart al-bara'ah.” Following that, we shall present an overview of the position that the Shafi'i Madhhab relies upon, followed by the differences of opinion found within the madhhab. Thereafter, a comparative overview contrasting differences of opinion between the other three schools of thought will be given. Also included, are evidences upon which the schools based their opinions with a concluding summary. May Allah give us tawfiq.

  1. i.                   The Literal and Legal Meaning

The word bara'ah البراءة lexically means exemption or immunity. (al-Qamus al-Muhit 1/8) And legally,

“It is when someone sells an article and stipulates, to the buyer at the time of the contract, to be absolved from liability due to defects acquired with the article. Or he says, “I sell this to you provided that you shall not return it because of a defect.” (al-Mu'tamad 3/91)

  1. ii.                 The Relied-Upon Opinion

The Shafi'is dealt with the proviso as follows:

1)      If the proviso does not meet certain criterion (as found in ii.2, ii.3, ii.4, ii.5), then it is considered null and void; though the contract remains executed. (This is discussed in the following works: Anwar 1/444: Fath al-Wahhab 1/171-73: al-Fawa'id al-Madaniyyah, Folio 129, Lines 15-19; Folio 130, Lines 1-2: I'anat al-Talibin 3/59-60 Iqna' 2/14-16: Kifayat al-Akhyar 296: Mu'atamad 3/91-93: Mughni al-Muhtaj 2/430-33: Nihayat al-Muhtaj 4/36-38: Rawdat al-Talibin 3/473-74: Tuhfat al-Muhtaj 2/138: al-Umm/Ikhtilaf al-Iraqi'ayni 8/225.)

2)      The proviso is for animals only, this excludes other goods.

3)      The proviso is only for internal defects.

4)      The defects must be unknown to the seller.

5)      The defects must be there at the time of the contract.

Shaykh al-Islam mentioned:

If he sells an animal or any goods, stipulating that he is absolved from liability pertaining to defects found in the goods, then he is absolved from the internal defects of an animal present within the animal that he was unaware of at the time of the contract. This differs with all other defects, in that, he is liable pertaining to defects in goods, except animals; and he is liable for what is found after the sale but prior to the buyer taking possession.” (Fath al-Wahhab 1/171) [The text of Shaykh al-Islam’s Manhaj al-Tullab is featured in bold and his Fath al-Wahhab italicized].  

 

  1. iii.              Inner-Madhhab Differences

Imam Nawawi noted two points of difference:

1)                             The seller stipulates that he is absolved of liability from defects discovered between the time of the contract and the buyer taking possession. (Minhaj al-Talibin 2/35)

Wajh (a) This is the relied-upon opinion [ala al-asahh]. The condition is invalid, on grounds of nominal forfeiture; similarly, if he exempts the buyer from payment before selling to him. (Fath al-Wahhab 1/171; Mughni al-Muhtaj 2/432-33; Nihayat al-Muhtaj 4/38-40; Rawdat al-Talibin 3/474)

Wajh (b) The condition is valid. (Mughni al-Muhtaj 2/433; Nihayat al-Muhtaj 4/38-40)

2)                             The seller stipulates defects from which he is absolved. (Minhaj al-Talibin 2/35)

Qawl (a) This is the foremost opinion [al-azhar]. He may stipulate any and all unknown internal defect in an animal. The proviso is invalid when made for any goods besides an animal, be it personal or real property. It is invalid if made for external or known defects. (Fath al-Wahhab 1/171; Muhadhdhab 2/56-57; Mughni al-Muhtaj 2/431-32; Nihayat al-Muhtaj 4/36-38; Rawdat al-Talibin 2/473; Sharh al-Muhadhdhab 11/608, 610-13, 618; Tuhfat al-Muhtaj 2/138; al-Umm/Ikhtilaf al- Iraqi'ayni 8/225. In Sharh al-Muhadhdhab, this discussion comes between Kitab al-Riba and Kitab al-Taflis. Consequently, it is not Imam Nawawi’s discussion, but Imam Subki’s.) Returning defective merchandise is a right legally granted in the contract; any condition which negates this has altered what is effectuated by the law. (Nihayat al-Matlab 5/282) The allowance of unknown internal defects in animals is for reason of necessity only. (Ibid 5/284)   

Qawl (b) He may stipulate any and all defects. The buyer is absolved from all that he stipulates. (Bayan 5/326; Lubab 238-39; Mughni al-Muhtaj 2/432; Rawdat al-Talibin 3/473-74; Sharh al-Muhadhdhab 11/607, 609-10, 612-14, 617-18) The exclusion of a right is permissible. Moreover, the contract’s execution is better sustained through the exclusion. (Nihayat al-Matlab 5/282)

Qawl (c) He may stipulate only defects of which the buyer is aware. (Bayan 5/327; Muhadhdhab 2/56; Mughni al-Muhtaj 2/432) If this was Imam Shafi’s opinion in his Iraqi books, it was later discontinued [qawl qadim]. (Sharh al-Muhadhdhab 11/614)

 

  1. iv.              Differences Between the Madhahib   

Digressing from the madhhab, other schools have discussed this issue. Some of their conclusions are similar to positions within the madhhab.

1)      The Malikis transmitted a comparable opinion. They specified that article ii.2 may only include slaves, to the exclusion of all other goods. (Hashiyat al-Dusuqi 4/181) They maintain ii.4 and ii.5. (Dhakhirah 5/90-91)

2)      The Hanbalis did not allow the proviso and maintained that the buyer holds the right to rescind due to unknown defects acquired with the article. The seller is excused from all defects that have been disclosed to the buyer. This is similar to iii.2.c. (Sharh Muntaha al-Iradat 3/181)

3)      The Hanafis considered absolving from all defects as valid, similar to iii.2.b. (Hashiyat Ibn Abidin 7/221; al-Mirqat Sharh al-Mishkat 7/257; al-Ta'liq al-Mumajjad 3/215-18)   

 

  1. v.                 The Supporting Evidence

A verdict issued by the caliph Uthman was used to support the views found in ii, iii.2.a, and iv.1. His verdict came from proceedings which involved Ibn Umar and Zayd b. Thabit. Ibn Umar sold Zayd a slave for eight hundred dirhams. Ibn Umar stipulated in the contract that if there was any defect he would not be liable. Later, Zayd found the slave sick and claimed that Ibn Umar did not disclose it to him. The matter was brought before Uthman who requested Ibn Umar to take an oath stating that he was unaware of the defect. He refused; consequently, Uthman rescinded the contract and returned the slave to Ibn Umar. Thereafter, Ibn Umar sold him for one thousand, five hundred dirhams and remarked, “I didn’t take the oath for the pleasure of Allah and He rewarded me for that.” (Muwatta 3/214-18; al-Sunan al-Kubra 5/328-29; Talkhis al-Habir 4/1791)

It could be surmised that Uthman opined a seller to be absolved from defects of which he was unaware. Does this absolving extend to all goods animate and inanimate or animate only? Imam Shafi'i in iii.2.a confines the validity of the proviso to only slaves and animals; Imam Malik holds a similar view (iv.1).

Some scholars argued that this would be an ijma' sukuti in that Uthman’s verdict went unchallenged. It is possible that Ibn Umar knew of the defect and differed with Uthman. To consider Ibn Umar as dealing by way of impropriety amongst his colleagues is problematic. His refusal to take an oath may suggest that he held a view contrary to Uthman’s. (Sharh al-Muhadhdhab 11/618)

Even if Ibn Umar submitted to Uthman’s view, Imam Shafi’s opinion on ijma' sukuti as admissible evidence is disputed. (Ikhtilaf al-Hadith 125; Nafa'is al-Usul 6/2684, 2689-92; Mahsul 6/2687; Mustasfa 1/191, 271-72) It is possible that Imam Shafi'i followed the ruling of Uthman and subsequently supported his view with qiyas, (Sharh al-Muhadhdhab 11/622-23) as in the case of Zayd b. Thabit and the grandfather’s inheritance. (Risalah 591-97)

The question of qawl al-sahabi as an admissible form of evidence may have influenced the conclusions: in the qawl qadim it was admissible; conversely, when the qawl jadid was formed Imam Shafi'i no longer admitted it. (Mustasfa 1/268; Sharh al-Waraqat 189-90) Imam Shafi'i discussed some details of qawl al-sahabi in Ikhtilaf al-Hadtih which is frequently considered to be a work representing part of the qawl qadim. (Mustasfa 1/271) However, according to Imam Subki, it was transmitted via Imam Shafi’s Egyptian students, and hence part of his qawl jadid. (Sharh al-Muhadhdhab 11/622) Even so, some considered that if qawl al-sahabi is found with qiyas khafi, then it will be given preference over qiyas jalli. This is related from Qadi Husayn, al-Qaffal al-Shashi, and Ibn al-Qattan. Imam Muzani has also related it from Imam Shafi'i. (al-Bahr al-Muhit 6/53-64; al-Hawi al-Kabir 5/273; Mustasfa 1/266-67, 272-74; Sharh al-Muhadhdhab 11/622-23; Sharh al-Waraqat 191)

The view that qiyas jalli takes precedence has been conveyed from the Shafi'is. (al-Bahr al-Muhit 6/53-64; Mustasfa 1/261, 272-73) Imam Ghazali even considered the possibility that the foremost qawl (iii.2.a) had been withdrawn [al-marju an hu]. (Mustasfa 1/274)  

The consideration that liability may be absolved, similar to what Ibn Umar may have opined, (Sharh al-Muhadhdhab 11/618; al-Ta'liq al-Mumajjad 3/214-18) is a view transmitted from the Hanafis, as an opinion of Imam Ahmad, and a qawl of Imam Shafi'i. (Bayan 5/326; Hashiyat Ibn Abidin 7/221; al-Sharh al-Kabir 11/256; Sharh al-Muhadhdhab 11/608) It is supported by what Umm Salamah related regarding two men who were in litigation regarding an inheritance. Neither of them had evidence worthy to substantiate a claim. Hence, the matter went to the Prophet. He said to them, “Verily I am a human. You bring proceedings before me and perhaps some of you are more knowledgeable by way of convincing arguments than the others. I judge upon what I hear. Whosoever I judge anything for from a right of his brother, he shall not take from it a thing. Indeed I have cut for him a piece of Hellfire.” Then the men began to cry, each saying to the other, “My right is yours.” So the Prophet said to them, “However, since you have both acted as you did, therefore, you shall divide and strive for what is right. Thereafter, draw lots. After that, each of you shall absolve his companion.”

The narration is related in Fath al-Bari 13/174; al-Mirqat Sharh al-Mishkat 7/257; Musnad Ahmad 18/281 # 26505; 18/306-07 # 26596 : Sunan Abi Dawud 3/1550-51 # 3584. Some editors claim the hadith to be da'if due to the presence of the narrator Usamat b. Zayd al-Laythi. (Awn al-Mabud 7/319-22: Sunan Abi Dawud 3/1551) Ibn Hajar declared Usamah to be, “saduq yahim.” (Taqrib al-Tahdhib 98 # 317) Yahya b. Main vindicated him and said, “laysa bi hi bas,” and at other times, “thiqah salih.” (Mizan al-Itidal 1/323) Hafiz Ibn Hajar reported that Ibn Main, “taraka haditha hu;” (Tahdhib al-Tahdhib 1/183-84) however, Imam Dhahabi rectified this and thus ascribed the statement to Yahya al-Qattan. (Mizan al-Itidal 1/323) Hence, the statement was indicative of incertitude in respect to his hifz, not a statement of condemnation. (al-Raf wa al-Takmil 260-61) Imam Ahmad mentioned that, “la hu manakir;” and this does not necessarily cohere condemnation nor weakness. (Ibid 201-02) Abu Hatim al-Razi said, “yuktabu hadithu hu wa la yuhtajju bi hi.” (Tahdhib al-Tahdhib 1/183) Discussion on the purport of Abu Hatim’s statement is found in Jawab al-Hafiz al-Mundhiri pg. 37, 93-99. Imam Nasai said, “laysa bi al-qawi,” (Tahdhib al-Tahdhib 1/183) which is a condemnation, however not severe. (Usul al-Jarh wa al-Tadil 188) In another instance he said, “laysa bi hi bas.” (Manhaj al-Imam al-Nasai 1876) Accordingly, it seems as though his hadiths may be characterized as hasan, akin to what Imam Dhahabi mentioned. (Tahdhib Siyar Allam al-Nubala 1/237) Perhaps, if there be reservation regarding his hifz, then to find narrations corroborating what he relates is prudent. A corollary of this narration is the exclusion of a right.

In conclusion, the Shafi'i madhhab has provided opinions very similar to the other three schools of thought. The relied-upon opinion clearly states that the proviso is valid for internal defects in animals of which the seller is unaware. The Maliki opinion is very similar, specifying that only slaves may be included in the proviso. The Hanafi opinion considers the proviso valid, even for defects that the seller is aware of and for all goods. A lesser opinion in the Shafi madhhab was transmitted as similar to the Hanafi opinion.

Whichever opinion a person follows, he should keep in mind that fair and honest dealings are from amongst the hallmark qualities of a Muslim. Deception and cheating are not considered as lawful by any of the schools of thought. The bond of brotherhood between believers has been emphasized in so many places. Well-known is the hadith narrated on the authority of Anas b. Malik that the Prophet said, “None of you truly believes until he loves for his brother what he loves for himself.” (Sahih al-Bukhari 1/12; Sahih Muslim 2/211)

And, Allah knows best.

 

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