Ruling on As-Salam and its Relationship with Selling a House before it is Constructed

প্রশ্ন · Question

Bismillah ar-Rahman ar-Raheem,
My brother, may Allah protect you
Do you have a clear answer to this question?
Are the property development companies (FOPROLOS) advance
credit sale (As-salam) or not? Is this permissible according to Shariah,
i.e., to acquire a house before it is built?

উত্তর · Answer

Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,

You ask for two things:
The first: Is selling houses before their construction considered As -
salam (advance credit sale) or not? It is understood from your
question that if it is As -salam then it is permissible, since As -salam is
permissible...
Secondly: Is it permissible to sell houses before they are built?
As for the answer to the first question, the sale of houses before they
are built does not fall under As -salam, the explanation to this is as
follow:
- As-salam sale is: “the one who delivers present compensation for a
described compensation as surety for a period i.e. advance money as
price for a good he will possess after a time for a specific period” this
type of sale is a permissible in Shariah and is taking place in things
which are measured, weighed and counted, as shown in the Book of
The Islamic Personality, Vol. II, where it says:
“The permissibility of As-salam (advance credit sale) is established by
the Sunnah. It is narrated from ibn Abbas (ra) who said:
ي الثمار السنة والسنتيْ فقال
قدم الننْي صلَ الله عليه وسلم المدينة وهم يسلفون ف
ي كيل معلوم ووزن معلوم إلَ أجل معلوم
ي تمر فليسلف ف
من أسلف ف
The Prophet ﷺ came to Madinah and they would pay in advance for
fruits for one or two years so he said: Whoever pays in advance, let
him pay in advance for a specific measure and specific weight for a
specific period” (narrated by Muslim).
From Abdurahman bin Abza and Abdullah bin Abi Awfa who both
said:
«
ي الحنطة والشعيْ والزبيب إلَ أجل مسمًّ، قال
الشام فنسلفهم ف : قلت أكان لهم زرع أو
لم يكن لهم زرع؟ قالا: ما كنا نسألهم عن ذلك

“We used to acquire booties with the Messenger of Allah ﷺ and
there would come to us the Nabatheans of the Nabatheans of Sham.
So we would pay them in advance for wheat, barley and raisins for a
specific period. He said: I said: Did they have crops with them or did
they not have crops with them? They both said: We would not ask
them about that” (narrated by Al-Bukhari).
And in a narration:

ي الحنطة
«
والشعيْ والتمر والزبيب إلَ قوم ما هو عندهم
We would pay in advance at the time of the Messenger of Allah ﷺ ,
Abu Bakr (ra) and Umar (ra) in wheat, barley, dates and raisins to a
people who did not have it with them” (narrated by Abu Dawud).
All these are clear evidences for permitting advance credit sale. As for
what are the things in which As -Salam is allowed, and what are the
things in which it is not permitted, this is clear in the hadith and
Ijma’a. This is because As -Salam is buying that which is not owned
and buying something over which ownership has not been
completed, and they are both prohibited. As -Salam was excluded
from them by a clear text so it specified the prohibition in other than
that.
Accordingly, it is necessary that the thing in which As -Salam is valid
be clearly stated. Upon returning to the texts we find that As-Salam is
permitted in everything that is measured and weighed just as it is
permitted in everything counted. As for permitting it in what is
measured and weighed, this is due to what is established in the
hadith of ibn Abbas. The Messenger of Allah ﷺ said:
«
سْلَفَ فَلْيُسْلِفْ ف ِي ثَمَنٍ مَعْلُومٍ، وَوَزْنٍ مَعْلُومٍ إِلََ
َ
رَسُولُ اللَّهِ صلَ الله عليه وسلم: مَنْ أ
جَلٍ مَعْلُومٍ
َ
أ

““The Prophet ﷺ came to Madinah and they would pay in advance
for dates for two or three years so the Messenger of Allah ﷺ said:
“Whoever pays in advance in dates let him pay in advance for a
known price and a known weight for a specified period.” In “Bidayat
al-mujtahid wa-nihayat al-muqtaṣid by Ibn Rushd al-Ḥafid”
And in another narration of ibn Abbas who said: The Messenger of
Allah ﷺ said: «ي شِيء فق ي كيل معلوم ووزن معلوم إلَ أجل معلوم
من أسلف ف »
“Whoever pays in advance in something then he should pay for a
known measure and a known weight for a known period” (narrated
by Al-Bukhari).
This indicates that the money which is delivered is in what is
measured and weighted. As for its permissibility in the counted
(things), the Ijma’a has contracted upon As -Salam in foodstuff being
allowed. This Ijma’a has been transmitted by ibn Mundhir. Al-Bukhari
narrated and said: Shu’bah related to us and said: Muhammad or
Abdullah bin Abi Al-Majalid informed and said:
ي إلَ ابن أبْي أوف رض ي
ي السلف فبعثوب
«
ي الحنطة
الله عنه فسألته فقال: إنا كنا نسلف علَ عهد رسول الله وأبْي بكر وعمر ف
والشعيْ والزبيب والتمر
Abdullah bin Shaddad bin Al -Hadi and Abu Burdah differed over
advance credit sale so they sent me to ibn Abi Awfa (ra) so I asked
him and said: ‘We would perform advance credit sale (salaf) in the
time of the Messenger of Allah, Abu Bakr and Umar in wheat, barely
and dates.”
This indicates that As -Salam in foodstuff is permitted. Foodstuff is
not devoid of being measured, weighed or counted, so the rule is
related to all that foodstuff which is measured, weighed or counted
just like taking possession is related to it in its being of that which
needs taking possession of and just as it is related to riba of excess
(riba al -fadhl) in its being riba if there is excess in the measure or

weight or count. So As-Salam is also related to it in its being foodstuff
which is measured, weighed and counted. In the hadith is a text upon
the permissibility of the measured and the weighed but it did not
mention the counted (thing). The Ijma’a over the permissibility of
foodstuff makes the counted (thing) included in As-Salam.
However, it is necessary that the things paid for in advance are exact
in description like Jurani wheat, Birni dates, Egyptian cotton, Indian
silk, Turkish figs and exact in measurement or weight like a Syrian
sa’a, an Iraqi pound and the kilo and litre i.e. it is necessary that the
measure or weight be known and described.” End of quote from the
book, The Islamic Personality Vol. II.
Therefore, As-Salam is permissible only in the measured, the weighed
and the counted (things).
- To know how it is the measured, weighed and counted, it is by
recognizing the reality of al -Mal (the property) as Mithli (similar or
fungible) and Qimi (dissimilar or non-fungible) property:
Al-Mal al -Mithli is property that its similar is found in the market
with its descriptions, without a significant difference, such as wheat.
Thus, a kilogram of wheat with specific characteristics is just like
another kilogram of wheat of the same kind and a third kilogram of
wheat itself without difference...
Al-Mal Qimi is property that does not have its exact resembling in the
market, ie, unduplicated items that do not duplicate once with their
characteristics like the Mal al -Mithli. Thus, a house is a Qimi (value)
property, not a Mithli (similar) property, because every house is
different from other houses in various matters such as its location,
the land on which it is built and the type of construction, etc.
- The measured, the weighed and the counted things, are examples
of Mithli goods, such as dates, wheat, barley, raisins and so on, for
these goods have equivalent of their kind if the descriptions are

shared without any small difference, that is, they are Mithli (similar)
goods. These goods, when the advance credit sale (As -salam) is
made, the seller promises to deliver to the buyer after a known
period of time certain amount of such Mithli goods whether they are
measured, weighed or counted with specific descriptions without
specifying a particular item, i.e. without promising the delivery of a
specific item, but he only promises to deliver the prescribed good,
according to its description, ie, he promi ses, for example, to deliver a
ton of wheat with determined specifications regardless of the source
of this good upon delivery, be it from such land or not, whether he
bought it or not, and whether he took it as a gift or not ... All this
have no value in the contract of As -salam sale, however, what
matters is only to deliver the described good in a specific time in
accordance with the specific descriptions that remove the disparity
between the Mithli (similar) goods... It came in Rawdhat At -Talibeen
by An-Nawawi under the title “Aspects in the Control of the Mithli”
Part 5 (pages 18 and 19), in which An-Nawawi mentioned five aspects
of controlling the Mithli, and he said at the end of it (the most correct
is the second aspect, but better to say: the Mithli: what is confined by
measure or weight, in which As-salam is permitted.) End quote.
- Houses are not included in the sale of As -salam because they are
not like the measured, nor the weighed or the counted things, for
they are not Mithli properties. So, any house which is intended to be
sold before it is constructed, even if it is accurately described and it
resembles other houses, there will remain differences between it and
other houses, such as the construction site and the land on which it is
built, and so on ... that is, the house is not a Mithli property that is
included in As -salam c ategory of sale. Therefore, houses cannot be
included under As-salam...
The sale of unconstructed house is therefore not included in As -
salam, and the evidences of As -salam do not apply to it. Therefore, it

is not permissible by the Shariah to attach it to As -salam which is a
permissible category of sale by the Shariah...
As for the answer to the second question, which is the ruling on
selling houses before being constructed, we have previously
answered such a question on 31/03/2016 as follows:
(Sale of apartments according to architectural plan before
construction:
A– Selling that which the individual does not own is not permitted,
due to many Ahadith, including:
- Al-Tirmidhi narrated in His Sunan from Hakeem bin Hazam (ra) who
said: “I said: O Messenger of Allah, there comes to me a man asking
me to sell what I do not have to sell then I buy if from the market. He
said ﷺ«لََ تَبِعْ مَا لَيْسَ عِنْدَكَ ». “Do not sell that which you do not have”.
Al-Tirmidhi narrated that Abdullah bin Amr said that the Messenger
of Allah ﷺ said:
«لََ يَحِلُّ سَلَفٌ وَبَيْعٌ، وَلََ سَُِْطَانِ ف ِي بَيْعٍ، وَلََ رِب ْحُ مَا لَمْ يُضْمَنْ، وَلََ بَيْعُ مَا لَيْسَ عِنْدَكَ »
“It is not allowed to borrow and sell, nor two conditions in one sale,
nor a profit that is not included nor the sale of what you do not
have”.
Therefore, it is not permissible to sell a house or apartment that is
not yet constructed because it is not owned, and above all it does not
exist and is not standing ...
B– In conclusion, the sale of apartments that have not yet been
constructed is not permissible, because the sold good (apartments)
do not exist, and for the sale to be valid, the apartments must be
present, in a way that illustrates its existence such as its structure,
foundations, columns, walls, ceilings, etc., which is conventionally
sufficient to denotes the apartment and that it is present and
deliverable.

This is what I outweigh that eliminates disputes, especially since
many issues "problems" occurred in such a sale upon delivery.
C– In conclusion, contracts in Islam would prevent disputes, and
therefore they must be concluded on a material that is owned by the
seller, it exists, and can be delivered without impediments ... Buyers
should therefore investigate the availability of these things, and Allah
is the guardian of success).
I hope that this answer is satisfactory, and Allah Knows Best and He is
Most Wise
Your brother,
Abu Yasin