Читать книгу A Dictionary of Islam. Being a cyclopedia of the doctrines, rites, ceremonies, and customs, together with the technical and theological terms, of the Muhammadan religion онлайн

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Though barter and sale for a price, are confounded under one general name in the Muḥammadan law, it is sometimes necessary to consider one of the things exchanged as more strictly the subject of sale, or thing sold, and the other as the price. In this view the former is termed mabīʿ, and the latter S̤aman. S̤aman, or “price,” is defined to be dayn fī ẕimmah, or, literally, an “obligation in responsibility.” From which, unless the expression is a mere pleonasm, it would appear that the word dayn is sometimes used abstractly, and in a sense distinct from the idea of liability. That idea, however, is necessary to constitute price; for though cloth, when properly described, may, by reason of its divisibility and the similarity of its parts, be sometimes assumed to perform the function of price in a contract of sale, it is only when it is not immediately delivered, but is to remain for some time on the responsibility of the contracting party, that it can be adopted for that purpose.

It is a general principle of the Muḥammadan law of sale, founded on a declaration of the Prophet, that credit cannot be opposed to credit, that is, that both the things exchanged cannot be allowed to remain on the responsibility of the parties. Hence, it is only with regard to one of them that any stipulation for delay in its delivery is lawful. Price, from its definition above given, admits of being left on responsibility, and accordingly a stipulation for delay in the payment of the price is quite lawful and valid. It follows that a stipulation for delay in the delivery of the things sold cannot be lawful. And this is the case, with the exception of one particular kind of sale, hereafter to be noticed, in which the thing sold is always indeterminate, and the price is paid in advance. It may, therefore, be said of all specific things when the subject of sale, that a stipulation for delay in their delivery is illegal, and would invalidate a sale. The object of this rule may have been to prevent any change of the thing sold before delivery, and the disputes which might in consequence arise between the parties. But if they were allowed to select whichever they pleased of the articles exchanged to stand for the price, and the other for the thing sold, without any regard to their qualities, the object of the last-mentioned rule, whatever it may have been, might be defeated. This seems to have led to another arrangement of things into different classes, according to their capacities for supporting the functions of price or of the thing sold in a contract of sale. The first class comprehends dirhams and dīnārs, which are always price. The second class comprises the whole division of dissimilars (with the single exception of cloth), which are always the thing sold, or subject of sale, in a contract. The third class comprises, first, all similars of capacity; second, all similars of weight, except dirhams and dīnārs; and, third, all similars of tale. The whole of this class is capable of supporting both functions, and is sometimes the thing sold, and sometimes the price. The fourth class comprises cloth, and the copper coin called fulūs.