Non-fungible goods (qimiyyat)

Qimiyyat is the plural of qimi, the word for goods that have no equivalent in the market, or whose equivalents differ noticeably in value, such as livestock and goods; their original make-up cannot be fixed by a description that can be attributed to them ¹. They stand opposite the fungible goods (mithliyyat), whose units are alike so that one may stand for another ^{1 2}.

Sale and hire may be made over non-fungible goods by agreement of the jurists, provided the goods are owned by the contracting party, clean and useful, within the party's power to deliver, and known to both parties; for hire the benefit must also be known and capable of being obtained ².

A salam contract requires that the item owed can be fixed by description, so salam on fungible goods is valid by agreement. Non-fungible goods are disputed ². The Hanafis refuse it except for the cases they approve on grounds of preference, such as cloth and mats; al-Kasani says that analogy would refuse measured-length goods, but common dealing in cloth justified approval ^{2 3}. The Malikis allow it for every non-fungible good, since it can be fixed by description, even pearls, by stating the kind, the number and the weight of each grain ³. The Shafi'is allow it for cloth, wool, wood, stones and animals, and refuse it for gems and hides, which cannot be fixed by description ³.

The Hanbali position on animals varies. Some early authorities are reported to have refused it, while the preferred view allows it, and the case given is that the Prophet ﷺ borrowed a young camel, and that an animal can be owed as a dower and so can be owed under salam, like cloth. Ibn Qudama reports two narrations on other goods that are neither measured, weighed nor sown, and quotes Ahmad as allowing salam only for goods that are measured, weighed or can be fixed by a known measure ⁴.

The Hanafis do not allow a loan of non-fungible goods such as animals, property and anything varied, because a loan requires that an equivalent be owed; a loan of such goods is treated as a loan of use that requires the same thing to be returned ⁴. The preferred Shafi'i view, and one Hanbali view, refuse the loan of non-fungible goods that cannot be fixed or are rare, since returning an equivalent is hard or impossible ⁵. The Malikis, and the second Hanbali view, allow it, and Ibn Abd al-Barr says any item may be lent or borrowed, including goods, coin and animals ⁵.

Most jurists hold that non-fungible goods cannot serve as the capital of a partnership, because they are distinct items that cannot be mixed, one may perish and be lost to its owner alone, and returning capital on dissolution would require an equivalent that does not exist. Its value cannot be the basis of the contract, since the value may change before sale and the price is unknown at the time of the contract ⁵. The Malikis differ and allow it for non-fungible goods such as goods and property, with recovery by value ⁵.