Khilafah Courts Manual (Basis of Sale and Buy)


CHAPTER I. THE CONTRACT OF SALE.

SECTION I. FUNDAMENTAL BASIS OF SALE.

167. Sale is concluded by offer and acceptance. ●

168. In sale, offer and acceptance is made by the use of words commonly employed in the particular locality in making a contract of sale.(*) ( An explanation of a turkish word is not translated here as being of no significance to the English reader.) ●

169. The past tense is usually employed in offer and acceptance.

Example:-(1). A vendor informs a purchaser that he has sold him a certain thing for one hundred piastres and
the purchaser states that he has purchased it; or the purchaser states that he has bought a certain thing and the vendor afterwards states that he has sold such thing. The sale is concluded. In the first case the offer consists of the words “I have sold ” and the acceptance of the words ” I have purchased”. In the second case the words ” i have purchased” constitute the offer and the words “I  have sold ” the acceptance.

(2). The vendor, instead of stating that he has sold, states that he has given a person something or has transferred the property in it to him, and the purchaser instead of stating that he has purchased states that he has agreed thereto or has accepted. A valid contract of sale is concluded.

170. A contract of sale may be concluded by employing the futurist tense if it imports the present: but if the future is meant, no sale is concluded. ●

171. If the future tense is used is the sense of a mere promise, such as the statement ” I will buy” or ” I will sell” no sale is concluded. ●

172. No sale is concluded by the use of the imperative mood, such as the expression”sell” or “Buy”. But when the present tense is necessarily meant a sale may also by concluded by the use of the imperative mood.

Example:- A purchaser says to a vendor: ” Sell me this article for so much money.” No sale is concluded. But if the vendor says: “Take this article for so much money” and the purchaser replies saying : “I have taken it”; or if the purchaser says “I have taken it”, and the vendor says, ” take it” or ” you may enjoy the benefit of it,” a valid sale is concluded, the expressions 2 take” or” enjoy the benefit of it” being equivalent to ” I have sold” and ” take it”. ●

173. Offer and acceptance may be made by writing as well as by word of mouth. ●

174. A dumb person may make a valid contract of sale by making use of generally recognised signs. ●

175. The fundamental object of offer and acceptance being the mutual agreement of the parties, a sale may also be concluded by any conduct of the parties which is evidence of offer and acceptance. This is called sale by conduct of the parties.

Examples:-

(1) A purchaser without bargaining and without making any statement gives money to a baker and the baker delivers bread to the purchaser. A contract of sale is concluded.
(2) A purchaser tenders money and takes a melon. The vendor remains silent. A contract of sale is concluded.
(3) A purchaser wishes to buy corn. With this object in view he tenders five pounds to a corn merchant asking the latter to tell him at what price he sells corn. The corn merchant replies that he sells corn at one pound per kile. The purchaser thereupon remains silent, and later asks for the corn and the corn merchant states that on the following day he will deliver it to him. In this case a contract of sale has been concluded, although there has been no offer and acceptance by the parties. So much so that if on the following day corn has gone up half a pound in price per kilo, the vendor is bound to deliver at one pound. If, on the other hand, the price of corn has gone down, the purchaser cannot refuse for this reason to accept delivery at the original price.
(4). A purchaser asks a butcher to weigh him so much money’s worth of meat from such and such a part. The butcher cuts the meat up and weighs it. A contract of sale has been concluded, and the purchaser cannot refuse to accept the meat. ●

176. If as a result of fresh bargaining after the conclusion of the contract, the price is changed, increased or decreased, the second contract is valid.

Example:- A contract is concluded for the purchase of an article for one hundred piastres. Later on fresh bargaining takes place and as a result the original hundred piastres is substituted for a gold piece of one hundred piastres, of for one hundred and ten piastres, or for one hundred and ten piastres or for ninety piastres. The second contract is valid.

 

SECTION II. AGREEMENT OF ACCEPTANCE WITH OFFER.

 

177. The acceptance of one of the two contracting parties must agree exactly with the offer of the other contracting party as regards the price or subject matter. Such party has no power to separate or divide either the price or the subject matter.

Example:-(1) A vendor tells a purchaser that he has sold him certain cloth for one hundred piastres and the
purchaser agrees thereto. He is then obliged to take the whole of such cloth for one hundred piastres. He cannot claim to take the cloth or a half thereof for fifty piastres.
(2) A tells B that he has sold him two horses for three thousand piastres and B accepts. B must take the two for three thousand piastres. He cannot take one of them for one thousand five hundred piastres. ●

178. It is sufficient if the acceptance agrees with the offer by implication.

Examples:-(1). A vendor informs a purchaser that he has sold him certain property for a thousand piastres.
The purchaser tells the vendor that he accepts for one thousand five hundred piastres. The contract of sale is for one thousand piastres. If the vendor, however, agrees to the increase of price at the time it is mentioned, the purchaser is bound to pay the additional five hundred piastres.
(2) A purchaser states that he has bought certain property for one thousand piastres. The vendor states that he has sold it for eight hundred piastres. A contract of sale has been concluded, and the two hundred piastres must be deducted. ●

179. If one of the two parties to a sale enumerates the prices of various articles, and proposes the sale of such articles en bloc and the other party accepts such offer, the latter may buy the whole lot for the whole price. If he does not do so, he may not divide up the lot and agree to buy any article he wishes at the fixed price.

Example:-(1) A vendor states that he has sold two particular horses for three thousand piastres. The first one for one thousand piastres and the second for two thousand piastres; or each of them for one thousand five hundred piastres. The purchaser can take the two for three thousands piastres. He cannot, however, take the one he prefers of the two for the fixed price.
(2) A vendor states that he has sold three pieces of cloth for one hundred piastres. The purchaser states that he has bought one piece for one hundred piastres, or two pieces for two hundred piastres. No sale is concluded. ●

180. If one of the two parties to a sale enumerates the price of the various articles, and offers them for sale separately and the other party accepts the article he desires, at the fixed price, a contract of sale is concluded.

Example:- A vendor enumerates the prices of various articles for sale and repeats that he has sold them, this one for a thousand piastres and that one for two thousand piastres. In that case, them purchaser may accept one of the two for the fixed price and buy the same.

SECTION III. THE PLACE WHERE THE SALE IS CONCLUDED.

 

181. The place where the sale is concluded is the place where the parties meet together with a view to the conclusion of the sale.●

182. Both parties posses an option during the meeting at the place of sale, after the offer has been made, up to the termination of the meeting.

Example:– One of the two parties to the sale makes an offer at the meeting place of the parties to the sale by stating that he has sold such and such property for a certain sum of money, or that he has bought such property, and the other party fails to state immediately afterwards that he has bought or has sold and some time later accepts at the same meeting. The sale is concluded, no matter how long the meeting may have lasted or how long the period between offer and acceptance may have been. ●

183. If one of the parties gives any indication of dissent after the offer and prior to acceptance, either by word or by deed, the offer becomes void and there is no longer any reason for acceptance.

Example:– one of the two parties to the sale, after stating that he has bought or that he has sold, occupies himself with some other matter, or discusses some other question. The offer becomes void, and thereafter the sale cannot be concluded by acceptance. ●

184. If one of the two parties to the sale makes an offer, but revokes such offer before the other party has accepted, the offer becomes void, and thereafter the sale cannot be concluded by acceptance.

Example:- A vendor states that he has sold such and such goods for so much money, but revokes such offer before the purchaser has accepted, and the purchaser later states that he has accepted such offer. No sale is concluded. ●

185. A renewal of the offer before acceptance cancels the first offer and its place is taken by the second offer.
Example:– The vendor states that he has sold such and such property for one hundred piastres, but before the purchaser has accepted, revokes the offer, and states that he has sold for one hundred and twenty piastres, and the purchaser accepts such offer. The first offer is of no effect, and the sale is concluded on the basis of one hundred and twenty piastres.

 

SECTION IV. SALE SUBJECT TO A CONDITION.

186. If a contract of a sale is concluded with an essential condition attached, both sale and condition are valid.
EXAMPLE:- A vendor sells subject to a right of retaining the thing sold until he has received payment of the price. This condition is no way prejudices the sale, but on the contrary is an essential condition of the contract.

187. In the case of a sale concluded subject to a condition of the object of which is to assure the due performance of the contract, both sale and condition are valid.
Example:– A certain thing is sold subject to the condition that some other thing shall be pledged or that a certain individual shall become a surety. Both sale and condition are valid. Moreover, should the purchaser fail to observe the condition, the vendor may cancel the sale. The reason for this is that these conditions assure the handing over of the price, which is an essential condition of the contract. ●

188. In the case of a sale concluded subject to a condition sanctioned by custom established and recognised is a particular locality, both sale and condition are valid.
Example :- The sale of a fur subject to a condition that it shall be nailed to its place; or of a suit of clothes subject to the condition that they shall be repaired. In these cases the condition must be observed in carrying out the sale. ●

189. In the case of sale subject to a condition which is not to the benefit of either party, the sale is valid, but the condition is voidable.
Example:– The sale of an animal subject to a condition that it shall not be sold to a third party, or that it shall be put out to graze. In such a case the sale is valid, but the condition is of no effect.

 

SECTION V RESCISSION OF THE SALE.

190. The two contracting parties may, by mutual agreement, rescind the sale after the conclusion of the contract. ●

191. As in the case of sale, rescission is carried out by means of offer and acceptance.
Example:- One of the two contracting parties states that he has rescinded or cancelled a sale and the other states that he has agreed thereto; or one of the parties tells the other to rescind the sale and the latter states that he has done so. The rescission is valid and the sale cancelled. ●

192. A valid rescission may also be effected by conduct which takes the place of offer and acceptance. ●

193. As in the case of sale, a meeting of the parties must take place in the case of rescission. That is to say, acceptance must be made known at the place where the offer is made. If this is done, and one of the contracting parties states that he has rescinded the sale, and the other party leaves without expressing his concurrence, or if one of the parties does anything which indicates dissent, the subsequent acceptance by the other is of no effect.

194. It is an essential condition that the thing sold should be in the possession of the purchaser at the time of the rescission. Consequently, if the thing sold is destroyed, the rescission is invalid. ●

195. If a portion of the thing sold is destroyed, rescission is valid as regards the remainder.
Example:- A vendor sells land he owns in absolute ownership, together with growing crops. After the crops have been reaped by the purchasers, the parties rescind the contract. The rescission is valid in so far as that part of the price concerning the land is concerned. ●

196. The loss of the price does not affect the validity of the rescission. ●

This chapter ends here . stay tuned.

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