A paper presented to the International Islamic Fiqh Academy at its Sixth Session, held in Jeddah, Saudi Arabia.
Majallat Majmaʿ al-Fiqh al-Islāmī (Journal of the International Islamic Fiqh Academy)
Allah, the Sublime, has sent humans to the world and has created for them all that is found in the earth. He has also permitted for them the ownership of things through different causes that He has legalized such as sale, purchase, gift, inheritance, bequest, etc. Sales and purchases are among the most important causes of ownership, the broadest in scope, and the most prevalent. Humans cannot do without them; life revolves around them and is completed by them. Therefore, Allah, the Sublime, has permitted sale, announcing it in His edifying Book by saying:
“Allah has permitted sale and prohibited ribā (usury)” [Al-Baqarah: 275].
Sale takes many different forms and comprises various types that are called by different names. They have different rulings with respect to validity and invalidity, permissibility and prohibition, etc. in the light of the Sharīʿah.
There is a type of sale called bayʿ al-wafāʾ (redemption sale) that was introduced after the first four centuries [of the Islamic era] about which there is no explicit text in the Qur’ān and Sunnah concerning its permissibility or prohibition. This is why the opinions of jurists differ about it. It is what we shall be investigating herein.
Before we begin the discussion of its ruling and the views of the jurists about it, we want to start by defining it, which will clarify its form and its different names. Then we will discuss its ruling and the disagreement of jurists about it.
It is worth mentioning that the leading latter-day Ḥanafī jurists (may Allah bless them) discussed it at length in their books and fatwas by a clear title with detailed texts. On the other hand, we do not find non-Ḥanafī scholars mentioning bayʿ al-wafāʾ by a clear title, except that the Mālikīs (may Allah bless them) mentioned it
by the name bayʿ al-thunyā, as we shall mention soon, God willing. Therefore, we will start with the opinion of Ḥanafīs first, followed by the Mālikīs, Shāfiʿīs and Ḥanbalīs. We pray to Allah, the Sublime, to enable us to reach the correct [conclusion], to recognize the truth to be true and to follow it, and to recognize falsehood as false and save us from following it. Indeed, He is the Enabler to truth and correctness.
