Question: 

A customer paid a deposit for a garment to be seen but never came back to fetch the garment. Efforts to reach the customer were made but to no avail. Sometimes, there is no trace whatsoever. It is a first time customer who leaves no details at all and they live in remote rural areas... 

What should we do with the garment? It cost us labour and time to sew.  The deposit , most times cannot cover labour costs as it is too little. We do have a sign to say that if items are not collected within one month from the appointed date , it will be sold to cover costs.  But not everyone sees and reads these signs. Then again, is such a condition valid? If the item can be sold , then what do we do with the deposit?

Answer: 

The transaction in question falls in the category of Bay-e-Istisnaa. This is where an item is non-existent but the customer orders the goods according to his/her specifications and the manufacturer then manufactures the item particularly for the customer.

In our scenario the customer ordered a particular garment which was to be made (according to specification) and even paid a ‘deposit’ towards the item. The jurists have written that in Bay-e-Istisnaa the sale is concluded at the time of the transaction. This means that when the customer orders the goods and the manufacturer agrees to manufacture it, then the sale is concluded even though payment may be effected at a later stage. This is the view of Imaam Abu Hanifa R.A. and considered as the preponderant view.

امام ابو حنیفہ رح کے نزدیک عقد استصناع ہے اور اس کے ذریعے بیع بھی ہوجاتی ہے مثلا جب میں نے کہاں کہ میرے لئے فلاں چیز بنادو اور اس نے کہاں – میں نے قبول کیا تو اس کے کہنے سے عقد منعقد ہوگیا اسلام اور جدید معاشی مسائل ص - ۶۴ ج ۴

Since the deal was already concluded, the customer will be considered as the owner of the goods and the manufacturer is fully entitled to the amount on which the deal was concluded. However, it is not necessary for the manufacturer to release the goods until he receives his funds in full.

فاذا حصل الايجاب والقبول لزم البيع اي ويثبت الملك لكل منهما وفيه اشارة الي ان البيع يتم بهما )حاشيه 5 المختصر القدوري - ص 315 البشري( -

Now, in our scenario, there is no hope of locating the customer, nor is there is any details to contact him/her. The manufacturer is therefore at a risk of suffering a loss if the customer doesn’t pitch up. On the basis of such necessity (where the seller will be harmed) some current day Ulama have provided a solution whereby the seller can cancel the transaction (which is referred to as Iqaala) but without the consent of the buyer. This in essence means that the manufacturer can cancel the deal (in his personal capacity) and then sell the garment to any potential customer or to any other person and in this way recoup his expenses. [Check Fataawa Darul Uloom Zakariyya Pg.76/77 Vol.5]

ہاں بعض علماء کا قول ہے کہ جب مشتری ثمن ادا نہ کرے تو بائع یک طرفہ عقد فسخ کرکے مبیع کو واپس لے سکتا ہے موجودہ زمانہ میں یہ آسان قول ہے اس پر فتوی دینا زیادہ مناسب ہے فتاوی دار العلوم زکریا ص - ۷۶ ج 5

As for the deposit, it will have to be returned to the buyer. If the buyer doesn’t pitch up and there is no hope of him ever returning, the funds could be given out in charity to a poor Muslim who qualifies as a recipient of Zakaat. However, if after giving out the funds the original owner returns then the seller will have to be reimburse him if he doesn’t approve and consent to the charity.

In regards to the sign stating that if the goods are not collected within a stipulated period it will be sold to defray expenses and costs. You have correctly stated that not everyone reads and understands these notices particularly when dealing with people living in rural areas as in your particular case, hence there is no agreement between the buyer and the seller in this regard. Secondly, if we are to assume that the seller explained the above condition to the buyer and the buyer even agreed to such terms and conditions, then too it won’t be correct as this is tantamount to including a condition at the time of finalizing and concluding the sale which the sale does not demand, and it is to the benefit of one of the transactors, which will result in the transaction being Faasid (corrupt).

وكل شرط لا يقتضيه العقد وفيه منفعة لأحد المتعاقدين أو للمعقود عليه وهو من أهل الاستحقاق يفسده )اللباب في شرح الكتاب باب البيع الفاسد( –

And Allah knows best!

ANSWERED BY: Mufti Mohammed Desai 

CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B 

Date: 04 Rajab 1441 

English Date: 28 February 2020