The Sharʿīʿah Concept of Sale before Taking Possession (Bayʿ Qabl al-Qabḍ) in Commercial Transactions and a Fiqhī Analysis of Its Applications on Digital Platforms

Abstract

This paper will discuss the Sharʿīʿah principle of Bayʿ Qabl al-Qabḍ (sale before taking possession), in commercial transactions and the modern interpretation of it on the digital platform, in terms of fiqh. It is a unanimously agreed rule of classical Islamic jurisprudence not to resell goods until possession is taken, due to pure Prophetic traditions, like Do not sell what is not in your possession. This prohibition is based on the need to avoid gharar( uncertainty ), fraud, unfair transfer of risks and unjust enrichment. However, the high growth of e-commerce, online markets, electronic goods, drop-shipping, and online property has caused substantial changes in the nature of possession (qabḍ), and there is a complex juristic question about the applicability of this classical rule in the digital era. The study, based using the Qurʾān, Sunnah, juristic consensus and the authoritative opinion of the four Sunni schools, first elucidates the linguistic and technical meaning of Bayʿ Qabl al-Qabḍ, the fiqhī typology of possession, such as physical (ḥaqikie) and constructive (Hukmie) possession. It proceeds to discuss how modern digital practices like escrow payment platforms, 3PLs, real-time tracking technologies, electronic transfers and guarantees offered through platforms are changing the concept of possession in the modern business. Basing on the decisions of modern fiqh academies and Sharʿīʿah advisory boards, the article maintains that given the presence of transparency, liability, and proper control over the item being sold, a lot of online transactions can be considered Sharʿīʿah-compliant. A particular focus is put on digital goods, pre-orders, and drop-shipping which can also be provided through known Islamic contracts like salam and istisnāʿ provided their conditions are met. The paper finds that although the ban on Bayʿ Qabl al-Qabḍ still has its foundations in the Islamic law, its implementation in digital trade takes a delicate and contextual method based on the principles of the juristical tradition, custom (ʿurf), and technological facts. This study will help guide Sharʿah-compliant online business without undermining the moral principles of the Islamic commercial law by providing practical recommendations.

Keywords: Bayʿ Qabl al-Qabḍ; Islamic Commercial Law; Qabḍ (Possession); Digital Platforms; E-Commerce.