What is the ruling if earnest money is paid before the contract, stipulated as a non-sale retention fee?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
If a dirham is given before the sale under the condition that the seller will not sell the goods to another if the buyer does not purchase them, and then a standard sale contract is concluded afterwards, counting that dirham towards the price, the sale is valid. This is because the invalid condition is nullified, and the transaction stands on its primary contract. This manner of contracting potentially reconciles Umar's reported action with the prohibition of *Arbun* and the opinion of those who deem it void.
Supporting text
If the item is not purchased in this scenario, the seller is not entitled to the dirham because they received it without consideration. The owner retains the right to reclaim it. It cannot be considered consideration for waiting to sell or for securing the sale, because if it were consideration for waiting, it would not be permissible to count it towards the price upon purchase.