Bayʿ al-Īnah: A Contemporary Islamic Jurisprudential Study

Abstract

The Bayʿ al-Īnah:  Façade (Sell and buy back to obtain profit) is one of the types of sales in which there is disagreement among the scholars of Islamic jurisprudence, as they differ in it on two opinions; a group prohibiting it which is the position of majority of jurists namely; Hannifities, Malikies and Hambalities, while the other group who are in minority depicted in Shafi’ities and Dhahirrite permits the sale, particularly Ibn Hazm; a Zhahiriy jurist. Those that opposite Bay al-Īnah:   who form the majority, tender as their proofs Prophetic Sunnah and Sad-du Adh-dhara’i (inference in the prohibition), which is considered to be a source of jurisprudence and its principles, while the group that approves it i.eShafities and Dhariyyah establish as their proof the unlimited proofs of permission of sale. This group further went ahead to discuss the proofs of those prohibiting it, as it relates establishing that or giving proofs. They eventually refuted the position of their counterpart. Those prohibiting Bai al-‘inah discussed the proofs of those approving it. The popular opinion of the two groups is that of those opposing Bay al-Īnah because their proofs are more stronger in establishment and substantiation in its prohibition; as we can fetch in the hadith related by Ibn Omar may Allah have mercy on both of them “If you partake Sell and buy back to obtain profit and take the tails of cows and you are satisfied with the cultivation and leave the Jihad. Allah will humiliate you until you return to your religion”. They also advanced Sad- Adh-dhara’I with clear cut evidence. Then the two groups, (those prohibiting and those permitting) agreed on the prohibition of  Bay al-Īnah when there is connivance between the two parties (Seller and buyer) on the deal. The two jurist groups therefore unanimously prohibit organized banking securitization, because of the connivance between the buyer and the seller, as the seller makes it a condition on the buyer to sell back to him the commodity purchased from the seller for the benefit of the buyer.