The Conditions of the Buyer and the Seller
2109. The following conditions have been stipulated for the buyer and the seller:
1. They should both be b¡ligh
2. They should both be sane
3. They should not be feeble-minded, in the sense that they should not be wasting their property on pointless ventures.
4. They should have the intention to buy and sell. Hence, if someone jokingly states, “I sold my property,” a transaction will not be realized. In reality, the intention is not a condition for the validity of the transaction; rather, it is what forms the transaction.
5. No one should have wrongfully compelled them. If they are compelled, but later consent to it, the transaction will be sanctioned.
6. They should be the owners of the commodity and the thing being offered in return, or have the right of guardianship over the owners, or deputyship and permission from him.
The detailed rulings pertaining to these conditions will be elaborated in subsequent articles.
2110. A transaction carried out with a non-b¡ligh child who acts independently in the transaction, is invalid with respect to his own wealth. If the transaction is carried out with his guardian, and the non-b¡ligh distinguishing child only articulates the formula for the transaction, it will be valid.
If however the commodity or the money belongs to someone else, and the child sells the commodity as a deputy of the owner, or buys something with his money, the transaction will be valid, even though the distinguishing child may act independently in utilizing it.
If the child is but a means for delivering the commodity and its payment to the parties involved in the transaction, there will be no problem in it, even if the child is not of distinguishing age. However, both the buyer and the seller should be certain or attain satisfaction that the child will deliver the commodity or the payment to its owner.
2111. If a person carries out a transaction with a child of distinguishing age, in cases where transactions involving such a child are not valid, and acquires commodities or money from him, then in the event that it is the property of the child himself, the person should return it to his guardian.
If however, it belongs to someone else, he should return it to its owner, or seek the owner’s consent. In the event that he does not know who the owner is, nor does he possess any means of identifying him, he should give the thing he acquired from the child to the poor on behalf of the owner with the intention of ma¤¡lim . Obligatory precaution dictates that he should seek the permission of the ¦¡kim al-shar’yy before doing so.
2112. If a person carries out a transaction with a child of distinguishing age, in cases where transactions involving such a child are not valid, and the money or the commodity that he gives to the child perishes, he may demand it from the child after he becomes b¡ligh. However, if the child is not of a distinguishing age, the person does not have the right to demand it from him.
2113. If a buyer or a seller is wrongfully compelled to carry out a transaction, but then willingly consents to it after the transaction, it will be valid. The recommended precaution however is that they should carry out the transaction again.
2114. If a person sells someone’s property without his permission, the transaction will not be sanctioned for as long as the owner does not consent to its sale and permit it.
2115. A father or paternal grandfather of a child, and similarly the person designated to execute the father’s or the paternal grandfather’s will, who has been designated to be the child’s caretaker, may sell the property belonging to the child. Obligatory precaution dictates that the transaction be to the benefit of the child. Similarly, a just mujtahid may also sell the property of an orphan in the absence of his father, paternal grandfather and their executors, given that the sale is to the benefit of the orphan. He may also sell the property of an insane person or a person who is missing whenever the circumstances necessitate it.
2116. If a person usurps a property and then sells it, and thereafter the owner of the property consents to the transaction, the transaction will be sanctioned. The usurped item that the usurper gave to the buyer, and all the acquired benefits from the time of the transaction, will be the property of the buyer. On the other hand, the item that the buyer gave, and all the benefits acquired from the time of the transaction will belong to the person whose property was usurped.
2117. If a person usurps an item and sells it, with the intention that the item acquired in return would become his property, then, should the owner of the usurped item consent to the transaction, it will be sanctioned. However, the item acquired in return will be the property of the owner and not the usurper.
