29. 买卖(bai’)
29. Trade (bai’)
从语言上讲,贸易(al-tijāra)指不受限制的交换,它与购买(al-shirā')相对。贸易一词也可用于购买,购买一词也可用于贸易,正如所说:他(ba'a)从他那里买了它,意即他买了它;他们(shara)卖给了他们,意即他们卖了它。因此,二者各自都可用于指代对方,具体含义由语境确定。 至于贸易在伊斯兰教法(Shar')中的含义,是指双方在自愿同意的前提下,以财产交换财产,并相互交付与接收。贸易为《古兰经》和圣训(Sunnah)所允许。安拉(SWT)说:
Trade linguistically is exchange in an unrestricted manner, and it is opposite to purchase. Trade is also used for purchase, just as purchase is used for trade. So it is said he (ba’a) purchased it from from him meaning he bought it, and they (shara) sold to them meaning they sold it so each of them is used for the other and the connotation specifies the meaning. As for trade in the Shar’a, it is exchanging property for property in placing in possession and being placed in possession by mutual agreement. Trade is permitted by the Book and Sunnah. Allah (swt) said:
“安拉允许贸易” [TMQ 2:275]
“Allah permitted trade” [TMQ 2:275]
然后祂(SWT)说:
And He (swt) said:
“当你们进行买卖时,也要请人作证。” [TMQ 2:282]
“And take witnesses when you trade” [TMQ 2:282]
And:
And:
“除非是你们彼此同意的贸易”[TMQ 4:29]。
“Except if it is trade of mutual agreement among you” [TMQ 4:29].
他说ﷺ:
And he (saw) said:
“两位交易者在未分离之前拥有选择权”(布哈里所载)。
“The two traders have an option as long as they do not separate” (narrated by Al-Bukhari).
而拉法阿传述道
And Rufa’ah narrated
“他与先知一同前往礼拜的场所,看见人们在做买卖,于是他说:‘商人们啊!’他们便回应真主的使者ﷺ,抬起颈项和目光望向他。他说:‘商人在审判日必将作为邪恶之人(fujjar)被复活,除了那敬畏真主、虔诚正直并施舍的人。’”【由提尔米兹圣训集(At-Tirmidhi)所载】
“That he left with the Prophet (saw) to the place of prayer and he saw people trading, so he said: O group of traders. So they responded to the Messenger of Allah (saw) and lifted their necks and eyes to him. He said: ‘Verily, traders will be resurrected as wicked persons (fujjar) on the Day of Judgement except the one who fears Allah, is righteous and give charity” [Narrated by At-Tirmidhi].
他还通过艾布·赛义德的传述路线,传述先知ﷺ曾说:
He also narrated via the way of Abu Said from the Prophet (saw) that he said:
“诚实可信的商人与众先知、诚实之人(siddeeq)和见证者(shuhada)同在。”ﷺ Wait, the Prophet is not mentioned in this sentence, so no ﷺ should be added. Corrected translation: 诚实可信的商人与众先知、诚实之人(siddeeq)和见证者(shuhada)同在。
“The sincere trustworthy trader is together with the Prophets, sincere persons (siddeeq) and witnesses (shuhada).”
交易的一个条件是,必须有要约与承诺,并且通过表明各自意思的言辞来完成,或者通过哑人的手势等代替言辞的方式来完成。书面形式等同于口头言语。至于实际的买卖,例如买方拿走商品并付款,如购买面包、书籍、邮票之类,则需要加以考察。如果该商品在市场上有公认的价格,且无需讨价还价,那么这一行为本身即表明了要约与承诺,因此被视为交易,也就是学者们所称的“相互取予式交易”。而如果商品的价格在市场上并未确定,需要讨价还价,那么在这种情况下,相互取予式交易是无效的,因为此时的行为并不能表明要约与承诺,其中可能会产生纠纷。而交易恰恰应当是防止纠纷的形式,这与之相反。因此,这种相互取予式交易不被视为交易,因为缺少关于要约与承诺的明确表述。由此可见,要约与承诺既然是交易有效的条件,就必须通过言辞或能明确表示其意的手势来完成,且这种表示必须具有确定的指向,不包含除这两者之外的其他可能,并且不致引起纠纷。
It is a condition for the trader that there exists offer and acceptance by words indicating each one of them or what stands in the place of words like the signs of the mute person. Writing is considered from speech. As for practical trade like where the buyer takes the good and pays its price like buying bread, books, postal stamps and the like, it is looked into. If it is a good with a well-known price in the market without bargaining therein then the action indicates offer and acceptance so it is considered trade and it is what the fuqaha term trade of mutual taking. Whereas if the price of the good is not defined in the market and needs bargaining, then the trade of mutual taking is not valid therein because the action does not indicate offer and acceptance as it is possible for disputes to enter therein. This is opposite to what transactions must be since transactions must be of a form preventing disputes. So this trade of mutual taking is not considered trading due to the absence of the clear statement upon offer and acceptance. Accordingly this clarifies that since offer and acceptance are conditions of the validity of the trade, it is necessary for them to occur by words indicating them or an sign indicating them with a decisive indication not carrying (any possibility) other than the two together with the absence of dispute.
在除了可称量、可衡量或可计数之物以外的交易中,合同一经订立,交易即告完成,并不以接收所售之物为完成交易的条件。若所售之物在被接收之前损坏,责任由买方承担,而非卖方承担,例如购买房屋、牲畜、汽车以及与之类似的、不可称量、衡量或计数之物。这是依据先知ﷺ的圣训。
Trade is accomplished in other that what is measured, weighed or counted merely upon finishing the contract, and taking possession is not a condition to conclude the trade therein. If the sold thing spoils before its possession is taken, this is in the responsibility of the buyer and not the responsibility of the seller like the buying of the house, animal, car and what is similar to that which is not measured, weighed or counted. This is because of the Messenger (saw) saying:
“花费与责任相伴”(阿布·达乌德辑录)
“The expenditure is with the responsibility” (narrated by Abu Dawud)
这项交易中所增之物归买方所有,因此其风险也由买方承担。所以,如果他买了一头牲畜但尚未接收,而它之后产下幼崽,那么幼崽归买方所有,而不归卖方。另外,也依据伊本·欧麦尔所传的圣训。
The increase in this trade is for the buyer so its surety is upon him. So if he bought an animal and did not take possession of it then it give birth, its child is for the buyer not the seller. And (also) due to what ibn Umar narrated:
据说,先知ﷺ说过:当欧麦尔的一头骆驼产下幼崽时,先知ﷺ对他说:“把它卖给我吧。”欧麦尔说:“它是送给您的,真主的使者啊。”于是先知ﷺ买下了它。然后他说:“它是给你的,阿卜杜拉·本·欧麦尔,你想怎么处置它就怎么处置吧。”(布哈里圣训集所载)
“That the Prophet said when a cale camel was born belonging to Umar. The Prophet (saw) said to him: Sell it to me so Umar said: It is for you, O Messenger of Allah, and he bought it. Then he said: It is for you, O Abdullah bin Umar, so do with it as you please” [narrated by Al-Bukhari].
在其中发生的处置,若在占有之前进行,则此类情形被排除在外,因为它不可计量、称重或计数。然而,如果交易涉及以计量、称重或计数的方式衡量的物品,则交易只有在取得所售物品的占有后才算完成。因此,如果所售物品在取得占有之前变质,则其损失由卖方承担。这是因为先知ﷺ禁止在取得食品占有之前出售食品,并且因为他ﷺ的圣训:
Disposition occurred therein before its possession was taken so it is excluded because it is not measured, weighed or counted. However if the trade occurs upon (something) measured, weighed or counted, the trade is not completed except upon taking possession of the sold thing so if the sold thing spoils before its possession is taken, then it is from the property of the seller. This is because the Prophet (saw) prohibited the sale of foodstuff before its possession is taken, and due to his (saw) statement:
“谁购买粮食,在完全收取之前,就不要卖出。”(由布哈里辑录)
“Whoever buys foodstuff, let him not sell until its full due is given” (narrated by Al-Bukhari).
穆斯林圣训实录辑录,伊本·欧麦尔说:
And Muslim narrated from ibn Umar who said:
“我们过去从骑马的商贩那里购买食物,靠猜测进行买卖,而安拉的使者ﷺ禁止我们在将其从原处搬走之前出售。”
“We used to purchase foodstuff from mounted riders, buying and selling by guessing, and the Messenger of Allah (saw) prohibited us from selling it until we transferred it from its place.”
这表明所售之物仍由卖方承担责任。若它已转入买方的责任之中,那么买方便可像已接收其占有之后一样,将其出售和处置。因此,当先知禁止在接收占有之前出售它时,也就是禁止处置它,意味着买方对它的所有权尚未完成,它仍由卖方承担责任,而非由买方承担。 据此,尽管禁令是针对食物而言的,但食物并不能免于被量取、称重或计数。所以,这一禁令适用于可量取、可称重、可计数的食物,因此禁令涵盖了一切可量取、可称重或可计数之物的出售,直到接收占有为止,无论它是否为食物。因为在一些圣训中提到的是“被量取之物”,在另一些中提到的是“商品”,还有一些提到的是“某物”。穆斯林圣训实录中记载,先知ﷺ说道:
This indicates that the sold thing is in the responsibility of the seller. Were it to enter the responsibility of the buyer, it will be permitted for him to sell it and dispose it just like after taking its possession. So when he prohibited its sale before taking possession, he had prohibited disposal of it meaning that his ownership in it is not completed so it is in the responsibility of the seller, not the buyer. Accordingly even though the prohibition came regarding foodstuff, foodstuff is not free of being measured, weighed or counted. So the prohibition is placed upon measured, weighed and counted foodstuff so the prohibition covers selling everything measured, weighed or counted until its possession is taken whether it is foodstuff or not since it came in some ahadith stating the measured thing, some stating the merchandise and some stating a thing. Muslim narrated that the Prophet (saw) said:
“谁买了食物,在量过之前不应卖出。”
“Whoever buys foodstuff should not sell it until he measures it.”
据传,哈基姆·本·希扎姆说:
And it is narrated from Hakeem bin Hazam who said:
我说:"安拉的使者啊,我购买货物,那么其中哪些是允许我的,哪些是禁止的?"他说:"你若购买了某物,在未收到之前,不要卖出。"ﷺ(艾哈迈德圣训集录)
“I said: O Messenger of Allah, I purchase goods so what is allowed to me of them and what is forbidden? He said: If you purchase something, do not sell it until you take possession” (narrated by Ahmad).
据传,宰德·本·萨比特说:
It is narrated from Zayd bin Thabit:
“先知ﷺ禁止在商品购入后、商人尚未将其运至自己的牲畜处之前就将其转售”(由艾布·达伍德记录)。
“That the Prophet (saw) prohibited selling goods when they are bought until traders gather them to their mounts” (narrated by Abu Dawud).
而艾哈迈德转述道:先知ﷺ说:
And Ahmad narrated that the Prophet (saw) said:
“谁购买以量或重量计的食物,在他收取之前不应转售。”
“Whoever buys foodstuff by measure or weight, he should not sell it until he takes possession.”
这些圣训都表明,凡是以量器计量、以秤称重或以数目计数的物品,其买卖规定具有普遍性;而伊本·欧麦尔的圣训则提供了排除的依据。该圣训记载,真主的使者ﷺ从欧麦尔处购买了一头骆驼,随后将其赠给了阿卜杜拉·本·欧麦尔,而这一切都发生在接收之前。因此,在该事例中,接收并非条件,这与以量器计量、以秤称重或以数目计数的物品形成对比:对于此类物品,买方接收所售之物是完成买卖的条件。沙里尔所认定的"接收",因物品的不同而有所区别。每种物品的接收,都以将其限定在买方控制之下为准。因此,如果某物是以量器计量或以秤称重的,那么其接收便是通过量取或称重来实现的,这依据的是布哈里所记载的圣训,即真主的使者ﷺ曾说:
All these ahadith indicate the generality of things measured, weighed or counted with the evidence of excluding things not measured, weighed or counted by the hadith of ibn Umar wherein it was mentioned that he i.e. the Messenger of Allah (saw) bought from Umar a camel and his gifting it to Abdullah bin Umar before taking its possession. So taking possession is not a condition therein contrary to measured, weighed and counted things where taking possession by the buyer of the sold thing is a condition for completing the sale. The taking possession considered taking possession by the Shar’a differs according to the difference of things. The taking possession of each thing is by confining it, so if it is measured and weighed then its taking possession is by measuring or weighing it due to what Al-Bukhari narrated that the Messenger of Allah (saw) who said:
“当你们购买时要量取,当你们出售时也要量取。”
“When you buy then measure and when you sell, measure.”
并且引述奥斯曼所说:
And from Uthman who said:
“我过去常从一个被称为“班努·盖努盖”的犹太部落购买椰枣,我会从中获利。此事传到了安拉的使者ﷺ耳中,他说:‘奥斯曼啊,你买的时候要量好,卖的时候也要量好。’”
“I used to buy dates from a tribe of Jews who were called: Banu Qaynuqa. I would buy with profit. This reached the Messenger of Allah (saw) who said: ‘O Uthman, when you buy then measure and when you sell then measure.”
然而,如果所售之物是迪尔汗和第纳尔,那么占有的方式是用手接收。如果是衣物,则以移动它们为占有。如果是牲畜,则以将其从原处牵走为占有。如果所售之物是不可移动或不可转移的东西,比如房屋和土地,那么占有的方式是在卖方与买方之间腾空,二者之间没有任何阻碍。这是因为"占有"一词是有其推定含义的术语,因此如果没有来自立法者的经文规定,那么它的实际含义就以人们的习惯认知为准。占有可以在支付价款之前或之后进行,因为交付是合同的要求之一,所以只要它在合同之后存在,其实际意义就已经达成。同样,对价款的占有与对两者之一的占有互不依赖。
Whereas if the sold thing was dirhams and dinars, then taking possession is by hand. If it is clothes then it is by moving them. If it were animals then its taking possession is by walking it from its place. And if it is from that which is not moved or transferred like the house and land, then its taking possession is by vacating between it and its buyer without any obstacle between them. This is because the word taking possession is a word with a deduced definition so if there came no Shar’i text upon it then its reality is considered what an indication to the people is. Taking possession is allowed before or after paying the price because delivery is from the contract’s requirements so whenever it exists after the contract then its reality has occurred. Similarly, taking possession of the price and taking possession of one of the two does not depend upon the other