#883: Ruling on Purchasing Used Clothes tied up in a pack without seeing them one by one

883. QUESTION:

“Secondly, the question regarding the buying of okrika clothes in bulk packed inside a bag.”

ANSWER:

Alhamdulillāh!

As for these used clothes, they are known to be sold in packs to people and in it are good and/or bad ones. There is no clarity as to how many are bad and how many are good. A person may purchase and find them all good and this may not be the case too. This is the attribute of this transaction based on what is known to me.

It is known that the Rasūl – salallāhu Alayhi Wasallam – forbade any transaction that has in it deception and unclarity and the Ulamā have discussed this matter in detail in the books of Fiq’h. This is referred to as Bay’u Al-Gharar and it is a Chapter in the Book of Transactions. Imām Muslim found it very instrumental in judging a lot of transactions and therefore started his Book of Transactions (Kitābu Al-Buyū’) with it.

But the deductions of the Ulamā and their views on the matters that can attribute to Gharar varies. For this reason, Imām Ibn Rushd Al-Mālikī said in Bidāyatu Al-Mujtahid:

“And generally, the Fuqahā are agreed that transactions that are susceptible to very much (Gharar) unknowns and open to deceptions are not permissible, and that which is susceptible to minimal unknowns is permissible. And they differed on certain things that have in them some of it. Some of them considered some of these matters to have high susceptibility to Gharar while others attribute them to little of it that is permissible. The reason for this is the possibility of it being easily attributed to either the little or the high susceptibility…”

What lies ahead of us in this matter is to determine the degree of deception and unknown.

But with respect to transacting what is not present and seen or what is not possible to see, the Ulamā differed:

The more popular position of Imam Ash-Shāfi’ī is that it is not permitted to transact whatever is not seen even if the attributes of it is described.

The position favoured by Mālik and the Imams of Madīnah is that its permissible to sell what is not seen provided it is described and its description is not expected to change before it finds its way to the hand of the buyer.

Whereas Imām Abū Hanīfah permits such a transaction even if the Attributes are not known, except that when it comes to the hands of the buyer and he doesn’t approve of it, he is at liberty to annul the transaction. There is a weak position in the Mālikī Madh’hab that agrees with the Hanafī position mentioned here even though some of the Imāms rebutted that, such as Imām Qādī ‘Abdulwahhāb Al-Mālikī rahimahullāh.

As was mentioned by Ibn Rushd, the reason for this difference is that Ash-Shāfi’ī considered this transaction to be dominant by unknowns even if it were described, Mālik considered it of little unknown if it is well described whereas Abū Hanīfah considered the unknown irrelevant as long as he will have the choice to annul the transaction once he gets hold of it.

And because of this, Mālik considered it permissible to sell goods that are described by a written card even if the good were not there for goods that the untieing of them now and then can get them spoilt or for which there is difficulty in untieing them now and then. But at the same time he considered it impermisible to transact rolled up clothes that can by unrolled for the buyer to see.

In this regard, it is mentioned in the Mālikī corpus Al-Fawākihu Ad-Dawānī:

“The Permissibility of selling clothes that have been described on cards is premised on the difficulty of losing the clothes over and over and folding them back, and then unfolding them, this is because it is much”

Whereas, Imām Ibn Hazm Al-Andalusī rahimahullāh differed aggressively on this in Al-Muhallā saying:

“Differentiating between one and many clothes is wrong and this is nothing but Harām”

He went on to contend that there is no guarantee that when you have a lot of clothes, loosing them up for the buyer’s seeing is any more difficult than when it is one. And in what he said is some point…

As we have mentioned earlier, the views of the Ulamā on matters like this differ especially given the estimation of the level of unknowns and the possibility of deception and cheating.

As for the matter under observation, what we see, and Allāh knows best, is that this transaction is Permissible for the following reasons:

1. That the level of unknown is very negligible because what is sold in it is known and it is likewise known that in it are some that are not as good as others.

The factor upon which Mālik based his Permissibility of transaction is the description that is known either by way of verbal or written description that makes the buyer aware of what he is buying. If then the contents of the pack is known to all that it may or may not contain bad clothes, then there is no problem with that.

2. The purchasing of the like of this is close to the purchasing in bulk of perishables such as tomatoes or palms such as Dates. The fact that some of the Dates and fruits from it may be bad when it is opened does not make the transaction impermissible because this is a necessity of life.

If you say: but this is as regards perishables why will you equate this to non-perishables? I say: what is sold here is called used clothes and not new clothes. There is no definition of the amount of usage that a cloth must pass through before it is regarded as *used*. It is very expected therefore to see in a pack what is fair and what it not. This is clear. Were the clothes to be new, then it would have been another matter entirely.

3. This is among the transactions that are necessary because people are in need of it especially in the winter season where the pull overs are needed.

It therefore follows, and Allāh knows best, that the unknown in this transactions are little and negligible and do not affect the Permissibility of this transaction.

And Allāh knows best.

Bārakallāhu Fīkum
Jazakumullāhu Khayran

Abū Āsim

27th Rabīu Al-Awwal, 1441AH.

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