The law of taking goods without permission with the intention of paying later

Fuad is a student who sells fried food in his village. The way he sells is by putting his fried food and money box in the classroom. He always left his fried food behind, because he believed that the children in his class would put the money straight into the box if they bought it.

Because he is often left behind, Fuad only feels sincere if he is paid straight away, even though he doesn’t know who bought it. But Fuad doesn’t like it if someone doesn’t pay, and this often happens, Fuad is always short of money. Well, let’s just say Jojon, he is a child who is a big fan of Fuad’s fried food. Even though he doesn’t have money, he definitely wants to always enjoy it.

Jojon always took Fuad’s fried food without paying, but he had the intention that when he had the money, he would pay it off. Next month he will have the money, Jojon wants to pay it off, it turns out that the fried food he took is quite a lot. So when he wanted to pay, he felt embarrassed to tell Fuad directly that he wanted to pay. He just put the money in the box without Fuad knowing.

From a fiqh perspective, what contract did Jojon make? In fact, in a sale and purchase agreement, as long as the seller is willing, this is legal. Even if you don’t say it every time, but it has become a habit or there is an understanding, it is still valid to obey tradition (a custom recognized by Sharia). OK, but the problem is that Fuad is only willing to pay for the fritters, not “loan him”.

In cases like this, in the book Majmu’ Syarh al-MuhadzabPeople who take goods without paying without permission from the seller are not permitted.

But if he takes something from him and gives him nothing, and they do not talk about selling, but rather mean to take it at the usual price, as many people do. Brothers, this is fake Without dispute, because this is not a verbal sale and purchase, and is not considered a sale and purchase, so it is invalid. Let us know this and be alert to it, and let us not be deceived. With many people He does it, because many people take what they need from the seller over time, without selling or dealing with each other, then after a while He holds him accountable And he compensates him, and this is not valid without dispute, as we have mentioned.

It means: “Meanwhile, if someone takes an item from the seller, without giving anything in return, and without entering into a sale and purchase contract, only for both (buyer and seller) to intend that the item be taken at the usual price – as is done by many people – then that is a contract that is void without any difference of opinion (among the ulama). If it is considered as a sale and purchase according to Sharia, then the law is void. We should be alert and vigilant about this, and not be fooled just because many people do it. Because there are many people who repeatedly take goods from sellers without a valid sale and purchase agreement, either verbal or deed, then after a long time they count and pay to the seller. So something like this is a void contract without fault, as we have said.” (Imam An-Nawawi, Majmu’ Syarh al-Muhadzab, your chapter’, Syamilah Library, cet, al—Munirah, p. 163)

This criticizes the common practice of people taking goods, intending to pay later, without a clear contract or agreement. So, if Jojon regularly takes fried food without saying a word, without a sign, without a clear agreement, just because the seller usually keeps quiet, this is strictly prohibited. Because it is also very similar to the practice of theft.

In buying and selling there are principles that must be considered, one of which is legal handover (qabd) with permission. If the buyer takes the goods without the seller’s permission before paying, then the taking is not valid as a handover.

A buyer who takes over the goods without the seller’s permission before paying the price will not be considered, except if the buyer takes over the goods without permission and it perishes in his hands or the defect in the receipt will be considered, then what is meant by direct price here is if the buyer takes over the goods being sold without the seller’s permission before he pays the price to the seller and he sells it to another person, or rents it, or pawns it, or gives it away, or hands it over, that is, he disposes of it in a way that can revoked. And cancellation, the Seller has the right to cancel the action and take back the goods he sold and keep them until he receives the price.

It means: “Taking goods by the buyer without the seller’s permission before paying the price is not considered legal (not considered a legal handover). However, if the buyer has taken the goods without permission and the goods are damaged or defective in his hands, then the taking is still considered valid in the context of responsibility, because what is meant in this case is the price paid directly (cash). “So, if the buyer takes the goods without the seller’s permission before paying the price, then sells it to someone else, rents it, pawns it, gives it away, or donates it (meaning he has made a transaction regarding the goods), namely actions that can be legally canceled or annulled, then the seller has the right to cancel those transactions, and has the right to take back the goods to hold them until he receives payment.” (book Fatawa ash-syibkah al-Islamiyyah, Syamilah’s maktabah, p. 10709)

Jojon’s case actually reflects a form of transaction that commonly occurs in social environments, especially between friends. But often without realizing it, this violates the boundaries of muamalah fiqh. The trust that Fuad gives his classmates is a form mu’āṭāh (buying and selling without words, just actions that show willingness and understanding). However, in fact this form is only valid if it complies with the conditions, namely that there is an indication of willingness from both parties when the transaction takes place and there is permission or an explicit understanding or accepted custom (‘urf). فَإِذَا ظَهَرَ وَالْقَرِينَةُ وُجُودُ الرِّضَى مِنْ God willing

The problem is, in Fuad’s heart, he doesn’t want his fried food to be taken without direct payment. He does not intend to make his sales a form of “debt that will be paid later”. He only agreed if he paid for the fries straight away, and this is important in jurisprudence because willingness (pleasure) is a pillar of buying and selling. Without consent, there is no valid contract.

Meanwhile, Jojon, even though in his heart he has good intentions and plans to pay it off, still takes something without explicit permission, and turns it into a debt without the knowledge of the owner of the goods, which in this case falls into the area of ​​ghashb (taking without rights) or at least vanity buying and selling, as quoted from al-Majmu’ Syarh al-Muhadzdzab by Imam an-Nawawi. Even if he pays later, the transaction is still invalid and classified as a prohibited form of taking.

What’s worse, if people like Jojon feel that this is normal because many people do it, this has actually been strongly criticized by the ulama: deviant bad habits cannot be used as the basis for permissibility (‘urf). The fact that many people take goods secretly and then pay later does not make it legal – on the contrary, scholars call it a false practice without khilaf (ulema agreement).

It is also emphasized in the fiqh quote that if someone takes goods before paying and without permission, then treats the goods as if they belonged to him (for example, sells them, gives them away, or gives them to someone else), then the seller has the right to cancel all transactions and take the goods back until the price is paid in full.

This reinforces that in a sale and purchase agreement, taking goods must be accompanied by the seller’s permission and payment (or payment agreement). Jojon’s practice is closer to ghashb (unilateral taking) from the muamalah is valid, even if he pays it later. Because the payment he made was not a form of paying off his debt, but rather a responsibility to Fuad for making a mistake.

Also Read: Sharia Credit and Solutions if Bad

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Author: Abil Qasim

Editor: Muh. Sutan