The Analysis of the Opinions Regarding the Undisclosed Goods Being Subject for Sale Contract in the Shafi'i Madhhab

Abstract

It is one of the issues discussed by Shafi'i jurists that a property that is not present in the contracting council or is not seen even though it is present is the subject of a sale contract. This issue is also an issue that remains up-to-date because it is closely related to today's commercial life. According to Shafi'is, in order for the contract of sale to be legally established, the subject of the contract called mahallu'l-'aqd must be "known" together with being present, possible and legitimate. According to them, if one of these conditions is missing, the contract will be void and will not have any legal consequences. Again, according to them, the goods sold must be "known" in such a way as not to lead the parties to deception and litigation. It becomes known if the goods sold in the contract of sale are seen in the contracting council or seen before the contract is made. As it is understood from the interpretations of Shafiis about the purchase and sale of the undisclosed goods and the examples they gave, the undisclosed goods are the goods that were not present in the contracting assembly at the time of the contract or that were not seen by the parties although they were present. For this reason, the fact that the goods sold during the contract of sale are not present in the contracting council or that they are not seen despite being present is expressed as "sale of the absent". Based on the hadith prohibiting the sale of gharar, the overwhelming majority of Shafiis argue that the property subject to the contract should be present at the contracting assembly and seen by the parties. According to the majority of Shafiis, the property subject to the contract should be present at the contracting assembly and seen by the parties. They argue that this helps protect the parties from uncertainty and deception. However, some Shafiis consider it permissible for both the seller and the buyer to make the subject of the sale contract a product that is not present in the contracting council. Some of the Shafiis also agree that it is permissible only for the buyer to make the undisclosed goods subject to the sales contract. Shafi'i scholars, who consider it permissible to make the undisclosed goods the subject of the sales contract, deems it appropriate to sell the undisclosed goods by mentioning its genus, type and sufficiently distinctive features. These jurists give the parties the opportunity to terminate the contract after seeing the undisclosed property. The concerns of the Shafiis, who do not consider it permissible to sell the undisclosed due to the fact that uncertainty may lead the parties to deception and conflict, disappears with the recognition of the right of choice to the parties to break the contract. Shafiis, who consider the sale of the undisclosed as permissible, stated that this type of sale would not include gharar, thanks to the granting of the buyer's right of discretion, and said that the hadith, which those who had negative opinions on the subject, showed as evidence, related to the sale contracts containing gharar, that is, the end of which is uncertain. These discussions of the Shafiis about the sale of the undisclosed took place at a time when the commercial life was not developed much, the desired goods could not be obtained immediately, there were no means of communication and transportation, and factories were not available. Today, people shop by looking at the label of the goods or based on the seller's statement. In fact, stipulating that the subject of the contract should be seen during the contract can cause problems today. For this reason, it becomes important to analyze the trend regarding the sale of the unknown by Shafi'i jurists in terms of today's commercial life. From this point of view, in this study, we discussed the views of Shafiis about the sale of undisclosed. In our study, we aimed to reveal their views on the subject by examining the works of Shafiis. Throughout the study, we analyzed and considered the views of Shafi'i jurists from Imam Shafii in detail. Thus, we evaluated the views on the subject with the analytical method and determined the opinion that is more suitable for today's commercial conditions. In this study, which deals with the views on the sale of the undisclosed in the Shafi'i madhhab, we aimed to reveal the nature and scope of the "undisclosed", its subject to the sale contract, to reveal the views of the classical Shafi'i jurists on the subject, and to examine these views within the framework of the conditions of today's commercial life.