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Possession of the subject matter plays a significant role in the sale and purchase contract and is one of the important and essential elements in Islamic law and jurisprudence. Without possession, the contract will be considered null or void.
Sometimes, possession is valid, and sometimes it is invalid, which in turn significantly affects the completion of the contract. Possession by the buyer restricts their rights to the subject matter. A valid possession transfers the liability for the merchandise to the person who possesses it.
Once the purchaser takes possession of the subject matter, they will bear any consequences, such as defects, decrease in value, or damage to the item.
By possession, the possessor acquires the right to dispose of the merchandise possessed. In addition, the possessor gains all the rights associated with the subject matter and can exercise them accordingly.
Qabd means akhdh, i.e. to receive, qabada al-shay’ means akhadhahu, i.e. he received the thing, sara al-shay’ fi qabdatik means sara fi milkik, i.e. it has become your possession, qabbadahu al-mal, i.e. he gave him the wealth,
and according to AAOIFI, Possession is the acquisition of things or what is governed by its rules according to customary practice. The basis for determining possession of the subject matter is custom (‘Urf’), as different things have different natures, and their possession is determined accordingly. (Ummah, 2019)
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Possession plays a significant role in the exchange of commodities in Islamic law. In the absence of possession, the contract will be considered incomplete, and the buyer will not have the right to dispose of the subject matter.
If someone sells the commodity or subject matter before taking actual or constructive possession of it, the contract will be deemed invalid from a Shariah perspective. (Usmani, 2015)
Possession (Qabd) of the subject matter is a prerequisite for the purchaser if they intend to sell it to someone else; otherwise, the sale will be void. For instance,
if person ‘A’ buys a car from person ‘B’, they cannot sell it to person ‘C’ before taking possession of the car, and if they do, the sale will be void. (Usmani, 2015)
There are mainly two types of possession:
This type of possession occurs when the seller hands over the movable or immovable property by relinquishing it and enabling the transaction. It is determined by customary practices, which vary depending on the type of property.
This type of possession occurs through the issuance of various documents representing the movable or immovable property, and possession of these documents is considered constructive possession of the property.
The basis for acknowledging custom (‘Urf’) as the foundation of possession is the consensus (‘Ijmah’) of the jurists (‘Fuqaha’).
Ibn Taymiyyah stated that since there is no specific definition for possession in either language or Shariah, recourse must be made to the custom of the people.
As mentioned in the Hadith, the Prophet (P.B.U.H) said: “He who buys food is not to sell it until he takes possession of it.” “Majmu’ Al-Fatawa” by Ibn Taymiyyah [3: 272].
Al-Khitabi noted that the form of possession differs for various things, depending on their nature and the varying practices of the people regarding them. “Ma’alim Al-Sunan Li Al-Khattabi”, [3: 136]. (Ummah, 2019)
-The basis for the possession of immovable property is the relinquishment of the property as per customary practice.
The majority of jurists, including Hanafi, Shafi, Maliki, Hanbali, and others, are unanimous that the possession of immovable property is determined by relinquishment and the facilitation of the transaction.
Hanafi jurists also stipulate that if a lock is placed on the immovable property, delivering the key along with the relinquishment is sufficient for possession, so that the possessor has the authority to open it without any difficulty.
“Radd Al-Muhtar” [4: 561]; “Al-Fatawa Al-Hindiyyah” [3: 16]; see articles (270) and (271) in “Majallat Al-Ahkam Al-’Adliyya”. (Ummah, 2019)
-The basis for the registration of immovable property in the case of mortgage (Rehn) as constructive possession is customary practice.
This is applied in countries that have adopted a registration system, where entry in the register is considered equivalent to possession, along with all its legal requirements.
In this context, constructive possession (Hukmi) serves as a substitute for actual possession (Haqiqi). “Al-Madkhal Al-Fiqhi Al-’Amm Lil-Zarqa” [1: 278] and [2: 648] marginal note. (Ummah, 2019)
- Possession of specific movable property, as well as liabilities by description, is established by relinquishing or handing it over to the buyer in a way that ensures no obstacles in the use of the property.
-The basis for considering the possession of movable property, such as cars, airplanes,
and trains, through registration in the official register (applicable in countries where the registration of movables is adopted) is that it is deemed constructive possession, serving as a substitute for actual possession.
Immediate Qabd occurs when the sale contract is completed, and the seller hands over the subject matter to the buyer immediately, without delay.
Deferred Qabd, on the other hand, takes place when the sale agreement is made on the spot, but possession of the subject matter or property is provided at a later time.
This is commonly seen in lease agreements, where the documents of the property or vehicles are handed over to the buyer at a later time.
Qabd is a key factor for the completion of a valid contract. A contract without Qabd is considered incomplete, and all terms and conditions related to the property are deemed suspended.
Additionally, Qabd on the property signifies the buyer's rights to it and the fulfilment of the seller's obligations.
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The enforceability of a contract based on Qabd means the contract is only considered valid and complete when possession of the property is transferred.
Without possession, the buyer has no right to dispose of the property. Therefore, Qabd is legally essential for both the seller and buyer to fulfil their obligations. After possession of the property is given, the contract becomes enforceable on the buyer.
References
Usmani, M. I. A. (2015). Guide to Islamic Banking New. 342.
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