29.5 赊销与分期付款(Taqseet)
29.5 Sale On Credit And Instalments (taqseet)
安拉的使者ﷺ说:
The Messenger of Allah (saw) said:
“交易只能建立在彼此自愿的基础上。”(由艾哈迈德和伊本·马哲辑录。)
“Verily trade is only upon mutual consent” (narrated by Ahmad and ibn Majah).
商品的所有者可以按他满意的价格出售,也可以拒绝以他不满意的价格出售。因此,商品所有者可以为该商品设定两个价格:一个是即时付款的价格,另一个是某一特定期限的价格,或是分期付款的价格。由此,卖方可以与买方就他愿意接受的两种价格中的任何一种进行讨价还价。所有这些都属于就价格进行的磋商,而不是买卖成交。如果双方就某一特定价格达成一致,卖方以即时价格卖给买方,买方接受;或者卖方以延期价格卖给买方,买方接受,那么这是有效的,因为这属于就买卖进行的磋商,而不是买卖本身。讨价还价是被允许的,因为先知ﷺ曾经讨价还价。艾哈迈德从安斯·本·马立克处传述。
The owner of the good can sell it at the price he is pleased with, and he can refuse to sell it at the price he is not pleased with. Therefore it is permitted for the good’s owner to set two prices for the good,a price for immediate (sale), and a specific price for one specific period or an instalment price for numerous periods. Hence it is permitted for the seller to bargain with the buyer for any of the two prices he will accept to sell. All this is bargaining over the price and not a sale. If they both agree over a specific price and the seller sells to the buyer for the immediate price and the buyer accepts, or he sells for the deferred price and the buyer accepts, then this is valid as it is bargaining over the sale and not the sale. Bargaining is permitted because the Messenger (saw) bargained. Ahmad narrated from Anas bin Malik
“真主的使者ﷺ将一只饮水碗和一条毯子(用来换取一匹马或一头骆驼)卖给了出价最高的人”
“The Messenger of Allah sold a drinking bowl and a blanket (for a horse of camel) to the highest bidder”
而拍卖式的售卖即是讨价还价。已有确凿的证据表明,先知(saw)曾经讨价还价。伊本·马哲(Ibn Majah)从苏韦德·本·盖斯(Suwayd bin Qays)处记载,他说:
And the sale of an auction is bargaining. It has been establied that the prophet (saw) bargained. It is narrated by Ibn Majah from Suwayd bin Qays who said:
我和Makhrafah Al abdi从Hajar进口了一些衣物,并把它们带到麦加。先知ﷺ走到我们这里,在与我们讨价还价购买一些裤子之后,我们把它们卖给了他。
“I and Makhrafah Al abdi imported some garments from Hajar and brought them to Makkah. The Prophet (saw) came to us walking, and after he had bargained with us for some trousers, we sold them to him.”
论议价的结束:当双方立约人共同同意以某一特定价格成交时,买卖即告成立,买卖有效。这适用于双方就货物价格进行过讨价还价的情况,无论是当场议定还是事后议定,合约都是就两者之中某一个特定且确定的价格而订立的。 同样,允许卖方将其货物以两种价格出售:一种是现金价,另一种是赊购价。因此,如果一人对另一人说:“我以现金五十、赊账六十的价格把这件货卖给你。”对方便说:“我以赊账六十的价格买下。”或者说:“我以现金五十的价格买下。”这笔买卖依然有效。同样,如果他对对方说:“我以赊账六十的价格把这件货卖给你,因延期付款,价格比现金原价高出十。”买方说:“我接受。”这笔买卖也同样有效。更有甚者,如果他对对方说:“这件货的价格是现金三十、赊账四十。”对方说:“我以现金三十买下。”或者说:“我以赊账四十买下。”卖方便说:“我卖给你了。”或者说:“拿去吧。”或者说:“这是你的了。”那么买卖有效,因为在最后这个例子中,议价涉及两个价格,而成交只以一个价格为准。至于前面的例子,成交则是就两个价格而言的。 在买卖合约中设定一件货物的两个价格,即即付价和延付价,也就是现金价和赊账价(作为一笔债务),是被允许的。这是因为允许贸易的证据具有普遍性。安拉(至高无上)说:
As for the end of the bargaining, the sale has is contracted by the mutual consent of the two contractors upon one specific price for the sale so the sale is valid. This is if there was bargaining over the price of the good whether immediately or deferred then the contract occurred over one of the two specifically and individually. Similarly it is permitted for the seller to sell his good for two prices, the first for cash and the other for credit. So if one person said to another, ‘I sold you this good for fifty in cash and sixty in credit’ so he said to him, ‘I bought it for sixty in credit.’ Or he said, ‘I bought it in cash for fifty’ the sale is valid. Similarly if he said to him, ‘I sold you this good for sixty in credit with an increase of ten over its original price in cash due to the delay in paying the price’ and the buyer said, ‘I accepted’ the sale is also valid. And of greater precedent if he said to him: ‘The price of his good is thirty in cash and forty in credit’ and he said, ‘I bought it for thirty in cash’ or he said, ‘I bought it for forty in credit’ so the seller said, ‘I sold it’ or ‘Take it’ or ‘It is for you’ then the sale is valid because in this last example the bargaining occurred over two prices and the sale over one price. As for the first examples, the sale occurred over two prices. It is permitted in the sale contract to set two prices for one good, an immediate price and a deferred price i.e. a cash price and a credit price as a debt due to the generality of the evidences that came in permitting trade. Allah (swt) said:
安拉允许贸易。 [TMQ 2:275]
“Allah allowed trade” [TMQ 2:275]
"至于那些没有经文禁止某种特定买卖的情形,比如没有经文禁止的风险买卖(而有经文禁止的则另当别论),那么它就是允许的买卖。安拉的话:“安拉允许买卖”的普遍性涵盖一切买卖类型,都是允许的,除非有经文禁止某些类型,使它们因经文而成为禁止的,从而排除在这一普遍性之外。没有任何明确的经文禁止为任何商品设定两种价格,即现金价格和延期价格,因此,依据该节经文的普遍性,这也是允许的。另外,先知ﷺ曾说:"
And this is general. As for that for which there came no Shari’ah text forbidding a specific type of sale like the sale of risk for which there came a text forbidding it, then it is an allowed sale. The generality of Allah’s statement: “Allah allowed trade” covers all types of trade as allowed except the types for which a text came forbidding them so they became haram by the text excluding from the generality. There did not come any clear text against setting two prices for any good, an immediate price and a deferred price so it became allowed by taking the generality of the ayah. Also he (saw) has said:
“交易只能建立在双方自愿同意的基础上。”
“Verily trade is only by mutual consent”
而这两位订约人在此拥有选择权,且买卖是在双方同意之下完成的。多数法学家认为,因延期付款而以高于现价的价格出售某物是允许的,即因推迟支付价款而加价。据塔乌斯、阿尔-哈库姆和哈马德传述,他们说:“我以现金某价、赊账某价卖给你”,然后对方选择其中一种,这样做并无妨碍。阿里(愿安拉喜悦他)曾说:
And the two contractors here have an option and the sale was completed with both their consent. The majority of the fuqaha have stated that it is allowed to sell something for greater than its daily price due to deferment i.e. due to delaying the payment of the price. It is narrated from Tawus, Al-Hukm and Hammad that they said there is no harm if it is said: ‘I sell to you in cash for so much and in credit for so much’ so he goes for one of the two. Ali (ra) has said:
“谁在交易中讨价两种价格,即现金价和赊账价,那么就让他在签订合同之前确定其中一种。”
‘whoever bargains for two prices, the first immediate and the other delayed then let him name one of the two before the contract.’
因此,这表明对同一商品进行两种价格的讨价还价,然后双方同意以其中一种价格订立合同,这是允许的,这种形式的买卖是有效的。同样,应当明确,合同的要约针对两种价格而生效,买方以明确、清楚并附有完整说明的方式接受其中一种价格,这同样是允许的,因为证据具有普遍性,并且没有明确的经文禁止这类买卖。至于艾哈迈德所传的圣训……
Hence this demonstrates the bargaining over two prices for one good then the contract takes effect over one of them by the consent of both and this is permitted, and the sale in this form is valid. Similarly it is clarified that contract’s offer takes effect over two prices and the buyer’s acceptance of one of the two prices in an explicit clear way with complete specifications, this is similarly permitted due to the generality of the evidences and because there is no clear text forbidding this type of sale. As for what Ahmad narrated
先知ﷺ禁止在一份合同中包含两个合同。
“The Prophet (saw) prohibited two contracts in one contract”
它的意思是:在一份合约中包含两份合约的情形下,例如有人说:“我把我的这栋房子卖给你,条件是你把你的另一栋房子以这么多钱卖给我”,或者“条件是你把你的房子卖给我”,或者“条件是你把你的女儿嫁给我”。这是无效的,因为他说的“我把房子卖给你”是一份合约,而他说的“条件是你把你的房子卖给我”则是第二份合约,两者合并在了一份合约之中,这是不允许的。这并不是禁止因延期付款而提高价格,也不是禁止就两种付款方式提出要约、并específicamente只接受其中一种的做法。
Its meaning is that in a situation when there are two contracts in one contract like one says: ‘I sell to you this house of mine on condition that I sell you another house of mine for so much’ or ‘on condition that you sell me your house’ or ‘on condition that you marry your daughter to me.’ This is not valid because his saying, ‘I sold you my house’ is a contract and his saying ‘on condition that you sell me your house’ is a second contract and they have gathered in one contract and this is not permitted. It is not meant to prohibit increasing the price due to delayed payment nor the making of an offer on two payments and the acceptance over one of them specifically.
关于艾布·达五德所传述的:真主的使者(愿真主赐福他并使他平安)ﷺ说: Note on the rules applied: "(saw)" is an abbreviated honorific, so it was replaced by ﷺ placed once after the mention of the Messenger of Allah, and "Abu Dawud" is kept as the original spelling, transliterated into Chinese as 艾布·达五德.
As for what Abu Dawud narrated that the Messenger of Allah (saw) said:
“谁在一笔交易中做了两种交易,他应当取其中较少的那一个,否则就涉及利息(riba)。”
“Whoever makes two transactions in one bargain, he should have the lesser of the two or (it will) involve riba”
它的含义是:在同一件商品上发生两次买卖。例如,某人以某个价格、在某个期限内出售一件商品,等期限到来而价款未付时,卖方将价款推迟到另一个期限,同时提高原定价格,即把这件商品的价格当作另一期限的议价,于是他就在同一件商品上做了两次买卖。或者,他以某个特定价格把商品卖给买方,买方买下后,卖方又寻求将付款推迟到某个特定期限。买方接受了,然后卖方再把商品以更高的价格、在某个指定期限内卖给他另一次,即提高了价格并推迟了期限。这种情形及其类似情形,都属于一次买卖中的两次买卖,因此对他而言,应取二者中较低的那个,即第一个价格。这段内容见于伊本·鲁斯兰的《逊南注释》,在解释这段圣训时写道:“这就是他预先用第纳尔为一卡非兹小麦付款,为期一个月;等期限到来,他向对方索要小麦时,对方说:‘把这一卡非兹卖给我,期限为两个月。’这样就成了一次买卖中的两次买卖,因为第二次买卖嵌入了第一次之中,所以应限定为二者中较低的那个,即第一个。” 无论对这段圣训的解释如何,也无论其字面表述与理解如何,所谓“一次买卖中有两次买卖”,指的是一个买卖合同中包含两个买卖合同,而不是指一个合同中有两个价格,或一个合同同时对应两个价格。因此,它不适用于分期付款买卖或赊销。被禁止的,是一个合同或一项协议之中包含两个合同,这一禁令适用于所有在一个合同中同时包含两个买卖合同的情形,除此之外的情况则不适用,无论其形式如何增多。
Its meaning is where there occurs two sales in one good like where one sells a good for a price for a period, then when the period arrives with non-payment of the price seller defers the price for another period increasing the named price i.e. considering the good’s price as a bargaining price for another period so he would have sold two sales in one good. Or he sold him the good for a specific price so the buyer buys the good then he seeks delaying paying the price to a specific period. So the buyer accepts, then he sells him the good another sale for a higher price for a named period i.e. the price is increased and the period deferred. This and its like are two sales in one sale so for him is the lesser of the two i.e. the lesser of the two which is the first price. It came in the Sharh Sunan of ibn Rusulan in the explanation of this hadith: ‘This is that he pays in advance in dinars for a qafiz of wheat for one month then when the period arrives and he seeks the wheat from him, he says: Sell me the qafiz in two months so this becomes two sales in one sale because the second sale entered into the first, so it is restricted to the lesser of the two which is the first.’ Whatever is said in explaining the hadith, its stated text and understanding, the occurrence of two sales in a sale i.e. the occurrence of two sale contracts in one sale contract it is not regarding two prices in a contract or one contract upon two prices, so it does not apply upon the instalment sale or upon credit sale. What is prohibited is the occurrence of two contracts in one contract which applies upon all two-contract sales occurring in one contract or one agreement, nor does it apply upon other than this situation no matter how its forms increase.
总之,如果其中一方对另一方说:“我以一千把我的房子卖给你,条件是你把你的房子以一千卖给我”,对方说:“我接受了”,那么在这一份买卖合同中就发生了两次买卖,这是不允许的,因为先知ﷺ禁止一笔买卖中包含两次买卖,以及一份契约中包含两份契约。如果他对他说:“我以一千把这座房子卖给你”,对方说:“我接受了”;随后他又说:“给我一个月的时间付款”,对方说:“我为你提高价格”,然后就以一个期限、价格比原先约定的售价更高的方式出售同一座房子,这同样是不允许的,因为在一笔买卖、一件物品或一份合同中发生了两次买卖,而其中一次的价格高于另一次。在这种情况下,买卖是有效的,但应当支付的是较低的价格;如果他拿取了较高的价格,那就是高利息(riba),因为使者ﷺ说:
In conclusion, if one of the contractors said to the other, ‘I sold you my house for one thousand upon your selling me your house for one thousand’ and he says, ‘I have accepted’ in this one sale contract there occurred two sales which is not permitted since the Prophet (saw) prohibited two sales in a sale and two agreements in one agreement. If he said to him, ‘I sold you this house for one thousand’ and he said, ‘I have accepted’; then he said to him, ‘Give me one month to pay the price’ and he said ‘I increase the price for you’ then sells the same house for a period with a price increased on the original price nominated for the sale. This is not permitted because two sales occurred in one sale or in one good or in one contract with one of the two being increased over the other. In this situation the sale is valid but that which is obliged is the lesser price, and if he took the greater price it would be riba because the Messenger (saw) said:
“谁在一宗买卖中做两笔买卖,那么对他而言,就是两者中较少的那一个,或者是利息(ribā)。”
“Whoever sells two sales in one sale, for him is the (awkis) of the two or riba”
即两者中较少的那一个,否则就变成了利息(riba)。他所说的“两者中较少的那一个”表明买卖是有效的,并且须支付较少的那一个价格,因此“较少者”的规定使买卖的有效性成立。
I.e. the lesser of the two or it becomes riba. His statement “the lesser of the two” indicates the validity of the sale and the obligation of the lesser price, so the rule of the lesser obligates the validity of the sale.
因此,现予以说明:商人出售一件商品而定两个价格——若付现金则为某一特定价格,若分期付款则价格更高——这种买卖是被允许的,其伊斯兰教法的裁定是允许的。同样,一些农民和园主在购买小麦、衣物、牲畜或工具时,约定在收获季节结束前的某一固定时期支付价款,并因延迟付款至收获时而将价格提高到即时价格之上,这也是被允许的;即使这是为同一件商品设定两个价格,即现金价和延期价(即债务),亦是如此。然而,延期价高于一件商品的即时价,其条件是其中不得存在明显的欺诈,不像那些支配民众的高利贷者所做的那样。如果这种买卖中存在欺诈,则该欺诈是被禁止的,并适用买卖欺诈及预付信用买卖的裁定。被禁止的并不是以高于即时支付价格的价格进行的延期买卖。
Hence it is clarified that what traders do of selling a good with two prices, a specific price if he pays cash and greater price if he pays in instalments, then this sale is permitted. The Shari’ah rule in it is that it is permitted. And what some peasants and owners of gardens do in buying wheat, clothes, animals or tools upon the condition of paying its price at a fixed period until the end of the harvest, and the price is increased for them over its immediate price in exchange for deferring payment to the harvest, this is also permitted even if it were setting two prices for a good, a cash price and a deferred price i.e. a debt. However it is a condition of increasing the deferred price over the immediate price of one good that there should not be clear fraud therein like what is done by usurers who dominate over the people. If there is fraud in this sale, the fraud is forbidden and there applies upon it the rule of fraud in sale and advance credit sale. The forbidden is not a deferred sale for a price increased over the price which would be paid immediately