Istisnaa' Contracts
Fatwa No: 388954

  • Fatwa Date:23-12-2018 - Rabee' Al-Aakhir 15, 1440
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Question

Assalamualaikum, syaikh please give me an explanation. I ordered a type 36 house with a developer with payment of credit.At the beginning of the ba'i isthisna , I think that the ba'i isthisna without any cash in front is legalized. At the time of house building process reaching 50%, I started to be in doubt of the legalization of the isthisna agreement. After that I read in the internet, most of the Moslem scholars say that the ba'i isthisna must cash in front (as ba'i salam) then I send a question about ba'i isthisna to muslim scholars in my country via email.I asked to some Moslem scholars, they had the same answers that isthisna agreement without any cash in front is legal, I believed in this fatwa. Then there is also The muslim scholar said that the aqad isthisna is not valid because when the aqad, of goods / house does not exist. At that time my house was still under construction. The muslim scholar advised me to repeat the aqad when the house was finished. At that time I was confused then I canceled the aqad, I was worried that my aqad was invalid. However, the developer refused to cancel the aqad. The developer said that the house had been built 50% so I could not cancel the aqad. 2 days later I and the developer met again. And at that time I told the developer that I would continue the contract and the developer answered yes. So, I continue aqad isthisna.Shaykh, my question 1) is whether the ba'i Isthisna has been damaged? because I cancel ba'i isthisna contract unilaterally, but the developer does not agree. And 2 days later I and the developer met again, And at that time I told the developer that I would continue the contract and the developer answered yes. 2) Did I do the Talfiq which damaged the ba'i isthisna ? I moved from one fatwa to another fatwa that had a different opinion.Please give me an explanation of this problem.Now I have lived in that house. And the renovation of the floor of the house.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The summary of what you have asked about is that the Istisnaa' contract [contract to have something manufactured] does not require giving the price at the time of the contract. The most preponderant opinion about its specification is that it is a separate contract: it is neither a sale, nor a hiring (lease), nor a Salam sale, and this is the view of the Islamic Fiqh Committee. This is because the Istisnaa' contract differs from all those three kinds of contracts.

When the Istisnaa’ contract is concluded in a valid manner, then it binds both parties to the contract, and none of the parties is entitled to invalidate it except with the consent of the other party. This is the view of the Islamic Fiqh Committee, and it is the view of some scholars of the Hanafi School of jurisprudence.

Therefore, your confusion about the permissibility of the Istisnaa’ contract does not affect it, and nor would your request to the contractor to invalidate it.

You should not ask so many questions or give in to whispers after you have finished the contract and dwelt in the house.

For more benefit, please refer to Fataawa 209692, 28827, 27508 and 11368.

You may also refer to the following article:

http://fatwa.islamweb.net/en/article/214465/contemporary-contracts-and-transactions

Allah knows best.

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