Question answered by Shaykh Sa’d bin Naasir ash-Shithree
[May Allaah have Mercy on him]
These are new forms of contracts that exist today. The
Fuqaha have various opinions on such forms of transactions.
Some have stated that combining two transactions in one
contract is not permissible, so this type of transaction to them would be
impermissible as it contains renting as well as buying at the same time. Furthermore,
renting and buying can’t be combined as they are two contradictory transactions
this is because the purpose of renting is not the same as buying something.
This view suggests that this type of transaction is Haraam based on the Hadeeth
which prevents two transactions in one contract.
Others stated that the intent behind such a transaction is
that the buyer and the seller have the intent to trade and not rent, therefore
possession will be transferred. Therefore, monthly payments are made as a form
of instalments.
Others held an opinion based on the principle, ‘if someone
promises you something, this becomes binding’ and this is a principle used by
the Maaliki scholars. Meaning, if one promises you something then this becomes
a binding contract. However, this view is based on weak arguments as they don’t
have solid evidence to back such a view. This is because, if someone promises
to do something and then that thing becomes obligatory for him then this
doesn’t mean a binding contract has been formed, rather it a promise means that
one party will do something for another party. Based on this, it is not correct
to form contracts based on the principle, ‘if someone promises you something,
this becomes binding’.
There are others who held the opinion that these types of
contracts are bound by time. Meaning, the first period of the contract is a
period of renting and then this gets transformed into a contract of trade at a
later stage. I say: this opinion has a view within the Sharee’ah and there are
many examples of such. For example, if one puts a deposit to buy something and
then completes the payment at a later date then we say this is permissible. If
the buyer doesn’t make the payment then it is permissible for the seller to
keep the deposit. This is similar to one renting to own. This is because two transactions
aren’t made in one transaction, there is a gap between the rental and the final
payment which means one takes possession of the item. This final explanation is
the most correct and the strongest view.
However, we still need to discuss a certain matter. This is
that the person who undergoes such a transaction falls under one who rents in
the first stage and is not a person who buying, therefore making a down payment
at this stage is not permissible. By making a down payment at this stage, it
means that he is buying the item and then the monthly instalments means he
returns to being a renter again, this is not permissible. Renting has no such
condition as a making a down payment.
[Sharh Manhaj as-Saalikeen (Tape 46, 24 – 28 minutes)]
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