Fatwa ID: 07549
Answered by: Aalimah Saleha Bukhari Islam
Question:
Assalamu alaikum,
I want to ask a question related to business.
If a person does not own any products, he cannot sell them according to the hadith.
But what will be the order for customized products which are made on order?
For example, furniture, customized printed clothes and many other things which are made only on order. These things cannot be kept in stock, because every product is made as per customer’s requirements.
Such products are neither with the seller nor with any factory. Because such products can be made only when the customer places the order, as per customer’s requirements.
So my question is whether I can take the order from the customer as per my price and give it to the factory.
And can I take the full money from the customer in advance?
Please clear my doubts.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Wa alaikum as salām wa rahmatullāhi wa barakātuh,
The principle of an ordinary sale transaction in Islam is that the commodity must be in existence and in the ownership of the retailer to sell directly to the purchaser. If the commodity doesn’t exist, then the sale of the item will not be permissible. [Fatawa Hindiyah, Vol 3, Pg 3]
The transaction in which a customer will purchase a commodity that is not yet in existence is known as ‘Istisna’ in Shariah. The Istisna method of sale is an exception made in place of the principle of an ordinary sale in Islam.
An exception has been made, whereby the sale of a commodity is transacted before it comes into existence such as a piece of furniture. The retailer transacts an Istisna’ contract with the manufacturer for a specific product i.e. a piece of furniture to be manufactured for a purchaser placing the order.
Mufti Taqi Usmani has mentioned the guidelines of Istisna in his book ‘An Introduction to Islamic finance’:
“Istisna’ is the second kind of sale where a commodity is transacted before it comes into existence…If the manufacturer undertakes to manufacture the goods for him with material from the manufacturer, the transaction of Istisna comes into existence. But it is necessary for the validity of Istisna that the price is fixed with the consent of the parties and that necessary specification of the commodity is fully settled between them.”
Once the manufacturer begins the work, the contract can no longer be cancelled unilaterally. This can only be done before work begins, as there is only a moral obligation to fulfil the contract before work has begun.
In Istisna, it is not necessary for the price to be paid in full in advance, it can be paid in instalments, and it is not necessary for the time of delivery to be fixed.
The Istisna sale is permissible under the conditions mentioned above. As a retailer, you can take the order from the purchaser and place it with the manufacturer. You can take a deposit on the order and agree a plan for payment. Once the manufacturing begins, then all parties are bound by the contract.
Only Allah (عز و جل) knows best.
Written by Aalimah Saleha Bukhari Islam
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
أن يكون ملك البائع فيما يبيعه لنفسه
العناية شرح الهداية (7/ 114)
يَجُوزُ اسْتِحْسَانًا وَالْقِيَاسُ يَقْتَضِي عَدَمَ جَوَازِهِ؛ لِأَنَّهُ بَيْعُ الْمَعْدُومِ، وَقَدْ نَهَى – صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ – عَنْ بَيْعِ مَا لَيْسَ عِنْدَ الْإِنْسَانِ وَرَخَّصَ فِي السَّلَمِ، وَهَذَا لَيْسَ بِسَلَمٍ؛ لِأَنَّهُ لَمْ يُضْرَبْ لَهُ أَجَلٌ، إلَيْهِ أَشَارَ قَوْلُهُ: بِغَيْرِ أَجَلٍ.
وَجْهُ الِاسْتِحْسَانِ الْإِجْمَاعُ الثَّابِتُ بِالتَّعَامُلِ، فَإِنَّ النَّاسَ فِي سَائِرِ الْأَعْصَارِ تَعَارَفُوا الِاسْتِصْنَاعَ فِيمَا فِيهِ تَعَامُلٌ مِنْ غَيْرِ نَكِيرٍ، وَالْقِيَاسُ يُتْرَكُ بِمِثْلِهِ
(و قوله) و لأنه يجوز فيما فيه تعامل لا فيما لا تعامل فيه.
An introduction to Islamic Finance, pg 195-200 (Maktaba Ma’ariful Quran, Karachi)
