Is bearing witness obligatory in sales contracts?

Chapter on Selling the Musarrah (Animal with milk retained in udder)

Al-Mughni

Book of Sales

Book 12 · Issue 1 · Bab 5

Open in Qurani

Primary text

Bearing witness in a sale is recommended (mustahabb). This is derived from the verse: {And call to witness two witnesses from among your men} (Quran 2:282), where the lowest implication of the command is recommendation. It is also recommended because it prevents disputes and eliminates denial, making it preferable. This recommendation specifically applies to transactions involving significant value. The evidence supporting the view that it is merely recommended includes the statement by Abu Sa'id al-Khudri and the position of Al-Shafi'i, the Ahl al-Ra'y (People of Opinion), Ishaq, and Abu Ayyub. Furthermore, the verse {But if some of you trust others, then let him who is trusted discharge his trust} (Quran 2:283) is used as evidence, with Abu Sa'id interpreting that the matter has reverted to trustworthiness (amanah). Also, the Prophet (peace be upon him) engaged in several transactions—buying food from a Jew while mortgaging his armor, buying trousers, and buying a horse from a Bedouin who later denied the sale until Khuzaymah ibn Thabit testified—without any report that he initiated a witness for these transactions.

Supporting text

A group maintains that bearing witness in sales contracts is obligatory and its omission is impermissible. This view is attributed to Ibn Abbas, 'Ata, Jabir ibn Zayd, and Al-Nakha'i, based on the apparent command in the verse and the analogy that since it is a contract of exchange, it necessitates a witness similar to marriage (Nikah).