Bay' al-istijrar (sale on running account)

بيع الاستجرار

Bay' al-istijrar is taking what one needs from a trader bit by bit, such as lentils, salt, oil or bread, as custom has it, and settling the account later. Ibn Abidin in Radd al-Muhtar reports al-Qunya's ruling that it is valid though it looks like a sale of what no longer exists, and the objections of the author of al-Nahr and of al-Hamawi; he himself holds that the question rests on istihsan, and distinguishes goods whose price is known at the time of taking from goods whose price is not.

Summary

Bay' al-istijrar is taking what one needs from a trader bit by bit, as custom has it, and settling the account afterwards. Ibn Abidin treats the question in Radd al-Muhtar under the side heading "on sale by istijrar". ¹

The difficulty: sale of what no longer exists

He reports from al-Bahr that one condition of the object of a contract is that it exist, so that no sale is concluded over what does not exist; he then notes that the jurists were lenient in one case they took out of this rule, from al-Qunya: things taken from a trader as current expenses, as is customary, without a sale, such as lentils, salt and oil, and then bought after they have been used up; this is valid. ¹

How it was explained

Known and unknown price

Ibn Abidin holds that al-Nahr's explanation works where the price is known at the time of taking, as with bread and meat: each time something is taken, a sale is concluded at its known price, so it is not a sale of what does not exist. ² Where the price is unknown at the time of taking, no sale by ta'ati is concluded because the price is unknown; if the taker uses the goods, which the trader handed over willingly in return for compensation, no sale is concluded even if a sale was intended, since a sale is not concluded by intention; it resembles a loan guaranteed by its like or its value, and when the two agree on an amount in place of the like or value, the taker's debt is cleared. ²

The baker case

He reports from al-Ashbah and al-Qunya: if a man gives dirhams to a baker saying "I buy from you a hundred mann of bread" and then takes five mann a day, the sale is defective and what he eats is disapproved, because he bought bread not pointed to, so the object was unknown. If he gives the dirhams and takes five mann a day without saying at the outset "I buy from you", it is valid and lawful even if he intended purchase when paying, since a sale is not concluded by mere intention but is concluded at the moment of taking by ta'ati, when the object is known. ²

When the value is reckoned

He reports from al-Ashbah, from al-Tatimma: if someone took rice, lentils and the like, having paid a dinar to be drawn on, and they later disputed its value, the value on the day of taking counts, since it was a bargaining when the price was mentioned. ²

Related entries

Sale by conduct (ta'ati).

Opinions on the question

First opinion · Sunni tradition (the museum's frame) · Sunni, Hanafi: an explanation by some scholars (reported by al-Hamawi)Main reference

it is not a sale of what does not exist but a guarantee for things consumed with the owner's customary permission, to make matters easy and avoid hardship; against this it was objected that guarantee by permission is unknown in the jurists' usage, and that fungibles are guaranteed by their like and non-fungibles by their value, not by a price. ¹

More opinions (2)

Sunni tradition (the museum's frame) · Sunni, Hanafi: the explanation of the author of al-NahrMain reference

what is taken is a sale by ta'ati, which needs no statement of price because the price is known; al-Hamawi objected that the prices of such things vary, which leads to disputes. The author of al-Nahr holds that the ruling in al-Qunya is weak, since all agree that sale of what does not exist is invalid, and reports Ibn Wahban's statement that what al-Qunya says against the rules is disregarded unless supported by another authority. ²

Ibn Abidin's view viewOther opinion

all this is analogy, while the question rests on istihsan; it can be explained as a loan of goods guaranteed by the price by istihsan, or as a gift on condition of a return, or as goods taken on approval for purchase. ¹ ²

Bay' al-ta'ati (sale by conduct)

Bay' al-ta'ati is sale in which the buyer puts down the price and takes the goods by mutual consent without words. Ibn Abidin in Radd al-Muhtar reports that by the sound view it is concluded for cheap and costly goods alike, against al-Karkhi, sets out the dispute over whether giving from both sides is required, and says it is not concluded if one party states that he does not consent, nor after a defective contract before that contract is abandoned.