Fatwa No : 85228
Making It a Condition That the House Remains in the Seller’s Possession Until Full Payment

Making It a Condition That the House Remains in the Seller’s Possession Until Full Payment

What do the respected scholars and honorable Muftis say regarding this issue: A man purchases a flat for 7 million rupees, and there is already a tenant in that flat. The rent of this flat is 80,000 rupees per month. The buyer has already paid 5 million rupees, while the remaining 2 million rupees he will pay within 3 months. Now the question is: During these 3 months, who will be entitled to receive the rent, the seller or the buyer? Since the general principle here is that until the full amount is paid, possession is considered to remain with the seller. Furthermore, if at the time of sale it was stipulated as a condition that a particular party will receive the rent, or no condition was stipulated at all, then will the ruling be the same in both cases or different? Please clarify with evidence so that you may be rewarded by the Most Merciful.

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clear that if the mentioned transaction was made in cash, then since in a cash transaction the seller has the right to keep the sold property (mabi‘) in his possession until the full price has been received, and according to the hadith, the one in whose possession the item remains is responsible for both its benefit and its loss, therefore, stipulating at the time of sale that until the complete payment is made the house will remain in the seller’s possession and he will continue to receive its rent — this condition is not considered contrary to the nature of the contract (muqtada al-‘aqd). Thus, making such a condition will not invalidate (fasid) the sale. However, the mentioned sale will also not be considered fully concluded; rather, it will remain suspended (mawquf). In such a case, the rent will continue to be received by the seller, while the buyer is also not obligated to pay the price before taking possession. However, once the lease period ends, if the buyer agrees to uphold this sale, then in such a case the sale will be deemed concluded. Thereafter, if the buyer wishes to enter into a new rental contract with the tenant, then after this new contract is finalized, it will be permissible for him to receive the rent. (Adapted from Imdad al-Fatawa, vol. 3, p. 43, with slight changes)

مأخَذُ الفَتوی

كما في الدر المختار: (و) بخلاف (بيع ما آجره) فإنه أيضا ليس بدون لحوق دين كما مر ويوقف بيعه إلى انقضاء مدتها هو المختار اھ (6/ 83)۔
وفيه ايضاً: (و) لا (بيع بشرط) عطف على إلى النيروز يعني الأصل الجامع في فساد العقد بسبب شرط (لا يقتضيه العقد ولا يلائمه وفيه نفع لأحدهما) (إلى قوله) (فيصح) البيع بشرط يقتضيه العقد) اھ (5/ 84)۔
و في حاشية ابن عابدين (رد المحتار): تحت (قوله لا يقتضيه العقد ولا يلائمه) قال في البحر. معنى كون الشرط يقتضيه العقد أن يجب بالعقد من غير شرط، ومعنى كونه ملائما أن يؤكد موجب العقد، وكذا في الذخيرة اھ (5/ 85)۔