Is a sale valid through Mu'atah (transaction by mutual conduct without explicit verbal offer and acceptance)?

General Chapter

Al-Mughni

Book of Sales

Book 12 · Issue 6 · Bab 1

Open in Qurani

Primary text

A sale is valid through Mu'atah (conduction), such as when one says, 'Give me bread for this dinar,' and the other gives what satisfies him, or says, 'Take this garment for a dinar,' and he takes it. Ahmad explicitly affirmed this ruling in a case involving bread pricing, directing the asker to weigh it and give it as charity if he weighed it, thereby obligating him. Malik's view is similar, stating that a sale occurs through what people generally consider a sale. Furthermore, the permissibility of sale was not specified in its form by God, necessitating recourse to custom, as is done for possession, safeguarding, separation, and the practices in marketplaces. The continuous practice of Muslims in their markets and transactions supports this, and since sale existed and was understood before Islam, it remains unless explicitly changed by religious decree. The lack of transmission regarding explicit offer and acceptance from the Prophet (peace be upon him) or his Companions, despite frequent transactions, implies its non-necessity as a precondition. Moreover, because sale affects everyone, the Prophet (peace be upon him) would have clarified the requirement of explicit offer and acceptance universally had it been a condition, to prevent widespread invalid contracts and illicit acquisition of wealth.

Supporting text

Some Hanafi scholars and Al-Qadi hold that Mu'atah is valid only for trivial items, not large ones. The view of Shafi'i is that a sale is not valid except through explicit offer and acceptance, although some of his school agree with the view affirming Mu'atah. Mutual consent demonstrated by bargaining and giving/taking suffices in place of explicit offer and acceptance because the contract is not inherently tied to specific verbal formulation.