There is another transaction which comes within the definition of sale, and has been already noticed, but may be further adverted to in this place. It is that which is called Qarẓ in the Arabic, and “loan” in the English language. The borrower acquires an absolute right of property in the things lent, and comes under an engagement to return an equal quantity of things of the same kind. The transaction is therefore necessarily limited to similars, whether of weight, capacity, or tale, and the things lent and repaid being of the same kind, the two rules already mentioned for the prevention of reba, or “usury,” must be strictly observed. Hence it follows that any stipulation on the part of the borrower for delay or forbearance by the lender, or any stipulation by the lender for interest to be paid by the borrower are alike unlawful.
Notwithstanding the stringency of the rules for preventing usury, or the taking any interest on the loan of money, methods were found for evading them and still keeping within the letter of the law. It had always been considered lawful to take a pledge to secure the repayment of a debt. Pledges were ordinarily of movable property; when given as security for a debt, and the pledge happened to perish in the hands of the pawnee, the debt was held to be released to the extent of the value of the pledge. Land, though scarcely liable to this incident, was sometimes made the subject of pledge, and devices were adopted for enabling the lender to derive some advantage from its possession while in the state of pledge. But the moderate advantage to be derived in this way does not seem to have contented the money-lenders, who in all ages and countries have been of a grasping disposition, and the expedient of a sale with a condition for redemption was adopted, which very closely resembles an English mortgage. In the latter, the condition is usually expressed in one of two ways, viz. either that the sale shall become void, or that the lender shall resell to the seller, on payment of principal and interest at an assigned term. The first of these forms would be inconsistent with the nature of sale under the Muḥammadan law, but a sale with a covenant by the lender to reconvey to the seller on repayment of the loan seems to have been in use probably long before the form was adopted in Europe. It is probable that a term was fixed within which the repayment should be made. If repayment were made at the assigned term, the lender was obliged to reconvey; but if not, the property would remain his own, and the difference between its value and the price or sum lent might have been made an ample compensation for the loss of interest. This form of sale, which was called Baiʿu ʾl-Wafāʾ, seems to have been strictly legal according to the most approved authorities, though held to be what the law calls abominable, as a device for obtaining what it prohibits.
In constituting sale there is no material difference between the Muḥammadan and other systems of law. The offer and acceptance, which are expressed or implied in all cases, must be so connected as to obviate any doubt of the one being intended to apply to the other. For this purpose the Muḥammadan law requires that both shall be interchanged at the same meeting of the parties, and that no other business shall be suffered to intervene between an offer and its acceptance. A very slight interruption is sufficient to break the continuity of a negotiation, and to terminate the meeting in a technical sense, though the parties should still remain in personal communication. An acceptance after the interruption of an offer made before it would be insufficient to constitute a sale. This has led to distinctions of the meeting which may appear unnecessarily minute to a reader unacquainted with the manners of Eastern countries, where the people are often very dilatory in their bargains, interspersing them with conversation on indifferent topics. It is only when a meeting has reference to the act of contracting that its meaning is thus liable to be restricted; for when the word occurs in other parts of the law, as, for instance, when it is said of a ṣarf contract that the things exchanged must be taken possession of at the meeting, the whole period that the parties may remain together is to be understood. As personal communication may be inconvenient in some cases, and impossible in others, the integrity of the meeting is held to be sufficiently preserved when a party who receives an offer by message or letter declares his acceptance of it on receiving the communication and apprehending its contents.
When a sale is lawfully contracted, the property in the things exchanged passes immediately from and to the parties respectively. In a legal sale, delivery and possession are not necessary for this purpose. Until possession is taken, however, the purchaser is not liable for accidental loss, and the seller has a lien for the price on the thing sold. Delivery by one party is in general tantamount to possession taken by the other. It is, therefore, sometimes of great importance to ascertain when there is a sufficient delivery; and many cases, real or imaginary, on the subject, are inserted in the Fatāwā ʿĀlamgīrī. It sometimes happens that a person purchases a thing of which he is already in possession, and it then becomes important to determine in what cases his previous possession is convertible into a possession under the purchase. Unless so converted, it would be held that there is no delivery under the sale, and the seller would of course retain his lien and remain liable for accidental loss.
Though possession is not necessary to complete the transfer of property under a legal sale, the case is different where the contract is illegal; for here property does not pass till possession is taken. The sale, however, though so far effectual, is still invalid, and liable to be set aside by a judge, at the instance of either of the parties, without any reference to the fact of the person complaining being able to come before him with what in legal phraseology is termed clean hands. A Muḥammadan judge is obliged by his law to interfere for the sake of the law itself, or, as it is more solemnly termed, for the right of God, which it is the duty of the judge to vindicate, though by so doing he may afford assistance to a party who personally may have no just claim to his interference. (The Muhammadan Law of Sale, according to the Haneefee Code, from the Fatawa Alamgiri, by Neil B. E. Baillie. Smith, Elder & Co., London.)
BAIL. Arabic كفالة kafālah. Bail is of two descriptions: Kafālah bi-ʾn-nafs, or “security for the person”; Kafālah bi-ʾl-māl, or “security for property.” In the English courts in India, bail for the person is termed Ḥāẓir-ẓamānī, and bail for property Ẓamānah, or “security.” Bail for the person is lawful except in cases of punishment (Ḥudūd) and retaliation (Qiṣāṣ). (Hidāyah, vol. ii. p. 576.)
AL-BĀʿIS̤ (الباعث). One of the ninety-nine special names of God. It means “He who awakes”; “The Awakener” (in the Day of Resurrection).
BAITU ʾL-ḤAMD (بيت الحمد). “The House of Praise.” An expression which occurs in the Traditions (Mishkāt v. 7). When the soul of a child is taken, God says, “Build a house for my servant in Paradise and call it a house of praise.”
BAITU ʾL-ḤARĀM (بيت الحرام). “The Sacred House.” A name given to the Meccan mosque. [[MASJIDU ʾL-HARAM].]
BAITU ʾL-ḤIKMAH (بيت الحكمة). Lit. “The House of Wisdom.” A term used by Ṣūfīs for the heart of the sincere seekers after God. (ʿAbdu ʾr-Razzāq’s Dictionary of Ṣūfī Terms.)