Fatwas on Terms of Contract
Q1459: Is de facto transaction binding as the one which is done through utterance of the formula?
A: Insofar as their binding powers are concerned, both de facto transaction and that done through utterance of the formula are the same.
Q1460: Members of a family agreed between themselves on the sale of, or reached a settlement about, some property and got the deal written and signed. However, they neither registered the sale with the competent authorities, nor was the particular formula uttered by a cleric. Is such transaction valid from both shar‘ī and legal aspects?
A: It is both valid and binding. That it is not registered with the authorities or that the formula was not uttered should not detract from its validity.
Q1461: Is it permissible to buy property without officially registering its deed with the lands department?
A: The materialization of buying and selling does not call for procuring an official document. The yardstick is the actual transfer of the property by the owner, his agent, or guardian, by way of a lawful and valid selling procedure, even without registering the deed.
Q1462: Is preparing an unofficial sale contract sufficient for the materialization of sale between the vendor and purchaser? And is the intention of both the parties to carry out the contract sufficient to make the deal a reality and, therefore, does it bind the vendor to prepare the official sale document and transfer the goods to the purchaser?
A: Neither the mere intention to sell nor the preparation of an unofficial sale document is sufficient for the materialization of the sale and transfer of the ownership of goods to the purchaser. Unless the deal is struck according to shar‘ī norms, the vendor is not obliged to prepare sale document in the name of the purchaser and transfer the goods to him.
Q1463: Two parties reached an agreement concerning a sale whereby the purchaser paid a down payment to the vendor. About it they prepared a document and stipulated therein that in the event of not completing the deal, the defaulting party should pay a certain amount to the party who kept his part of the deal. Could this very document be considered a sale document? In other words, is the mere agreement between the two parties and their will to complete the deal sufficient for the materialization of the sale in such a way that each party is allowed to demand the other to observe the mentioned condition?
A: The mere intention to sell, agreement to conclude it or promising to do so, even by a provisional written agreement, does not amount to a proper sale and is not sufficient for the validity thereof. The condition is, therefore, not binding unless it is enshrined in the appropriate sale contract or the contract is based on it. Thus unless the sale and transfer of the goods are done in a lawful manner, neither party is under any obligation vis-à-vis the other as far as the arrangement and promise to finalize the deal are concerned.
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