At-Tasreef Sale
Fatwa No: 397594

Question

as-Salaamu ‘?lakeum wa Rahmatu Allahi wa BarakaatuhCan you please explain in reasonable amount of detail what is the ruling of bay’ tasreef. Where person buys from the seller only the amount of he is able to sell on and return back to the seller that which he was left with and unable to sell. I’ve heard different rulings on the permissiblity of this transaction I was even told that the contemporary scholar Shiekh Uthaimeen (May Allah have mercy on him) had 3 opinions on the matter. Please can you elaborate on this topic may Allah bless you. Also may I ask you answers these question baarak Allahu feekum

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

What is known as At-Tasreef Sale has many forms, some of which are permissible, as it is simply an authorization given by the owner of the goods to the one who will sell it. An example is when the owner tells the one who will sell it: ‘Sell my goods for such and such price and you will get such and such fee; or (tells him) you will get whatever exceeds the price that I have specified to you, and if there is anything left from the goods (i.e. not sold), I will take it back (from you). There is no harm in this form as it is authorizing someone (to sell) for a fee in return.

There are other forms of At-Tasreef Sale that are not permissible and which are widespread. An example of this is for someone to buy from a person with a condition of returning the goods that do not sell. Shaykh Ibn 'Uthaymeen  may  Allaah  have  mercy  upon  him said:

Among its forms is to say: I sold you these goods, so whatever you sell, then it is sold, and whatever you do not sell, then return it to me. This transaction is forbidden because it definitely leads to ignorance because neither the seller nor the buyer know what will be sold from the merchandise; so the transaction is founded on ignorance (lack of information pertaining to the trade transaction). It is confirmed that the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) forbade the sale of Gharar (deceit and ignorance), and there is no doubt that this kind of sale is Gharar. However, if the two parties have to conduct a trade transaction, then let the one who owns the goods say: take these goods and sell them by proxy (on my behalf); and he should set a fee in return. This way, the objective will be achieved for both parties; the second person will act as an agent for the first person with a fee in return; this is acceptable.” [End of quote]

The condition of returning the goods that are not sold contradicts the essence of the contract, and it is a void condition. Ibn Qudaamah  may  Allaah  have  mercy  upon  him said when listing void conditions in contracts:

Or to condition on him to sell the goods or to appoint it as endowment, and if the goods are sold, he will return him (the owner) [..] These and all similar conditions are void. But does this invalidate the sale transaction itself? There are two different opinions (by Imaam Ahmad) about this." [End of quote]

It is possible to avoid such a condition, and the owner makes a promise (a non-binding promise) to take back the goods from the seller after the sale contract is concluded, if needed. In this case, if the goods are not sold, the buyer asks to return the goods. If the seller accepts this, as a fulfilment of his promise, then all the best, otherwise the goods belong to the buyer, and the seller is not obliged to take them back.

It is possible also to condition having the choice (to return the goods) in the contract of sale for a fixed period of time, then if the goods are sold, there is no problem, but if no one buys them during the fixed period of choice (grace period), then the buyer can return the goods.

Allah knows best.

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