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

بيع التعاطي

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.

Summary

In the Hanafi school a sale is concluded by words, offer and acceptance, and by conduct, which is ta'ati. ¹ Ta'ati lexically means "taking", as in al-Qamus, and its reality, as Ibn Abidin reports from al-Bahr and al-Sihah, is putting down the price and taking the goods by mutual consent without words. ¹

How it differs from acceptance by conduct

From the phrase "without words" Ibn Abidin infers that if someone says "I sell it to you for a thousand" and the buyer takes it without saying anything, the taking is an acceptance and is not a sale by ta'ati, against those who counted it as one; for ta'ati has no offer, only taking after the price is known. ¹

Cheap and costly goods

Ta'ati is concluded for cheap goods, of small price such as bread, and for costly goods, of high price; this is the sound and relied-on view for him, against al-Karkhi, who said it is concluded only for cheap goods; some jurists set the line for costly goods at the threshold value for theft. ¹

Must both sides hand over?

The case from al-Qunya

He reports from al-Qunya: a man gave a wheat seller five dinars to take wheat from him and asked him the price; the seller said "a hundred for a dinar", and the buyer was silent; he came the next day to take it and the price had changed; the seller must give it at the first price. ¹ The author of al-Qunya draws four questions from it: conclusion by ta'ati, for cheap and costly goods, from one side, and by handing over the price as by handing over the goods; Ibn Abidin adds a fifth from al-Bahr, that it is concluded even if knowledge of the quantity comes later. ¹

When it is not concluded

It is not concluded if one party says outright, while handing over, that he does not consent, as when someone pays the dirhams and takes the melons while the seller says "I will not give them for that", even if he knows the market custom. ¹ Nor is it concluded when it rests on an earlier defective or void sale that has not been abandoned, as in al-Khulasa, al-Bazzaziyya and al-Khaniyya; Ibn Abidin applies this to ta'ati after the session and thinks there may be two views on the question. ¹ ² He reports the rule that when the containing act fails, what it contains fails too. ²

Where ta'ati applies

He reports that ta'ati applies to rescission, hire and currency exchange, and to an agent for purchase handing over to his principal. ² Related: sale on running account.

Source

Radd al-Muhtar, volume 4, Book of Sales.

Opinions on the question

First opinion · Sunni tradition (the museum's frame) · Sunni, Hanafi: the preferred view of the author of al-DurrMain reference

handing over by one side suffices; once the goods are delivered the sale is binding by the sound view, and it can also occur by payment of the price alone when the goods are present and known. ¹

More opinions (2)

Sunni tradition (the museum's frame) · Sunni, Hanafi: those who require handing over by both sidesMain reference

because ta'ati is a reciprocal form; Ibn Abidin reports from al-Bahr that the wording of al-Sihah and al-Misbah implies this and that al-Tarsusi understood it so. ¹

The source of the dispute, as Ibn Abidin explains it viewOther opinion

Imam Muhammad pictured the case in one place as handing over by both sides and in another as delivery of the goods alone, and each party understood him accordingly. ²

Bay' al-istijrar (sale on running account)

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.