The words “unless it be a trade with your mutual consent” in ayah 29 lay down two conditions for the validity of a transaction through which the property of another person may lawfully be acquired. Firstly, it must be a transaction of trade which requires exchange of properties. Therefore, the transactions of gambling, speculation and usury or the transactions of sale where the commodity does not exist are forbidden and are not valid in Shariah because these transactions cannot be termed as trade, even though they are affected in the name of trade.
Secondly, the transactions must be affected with the mutual consent of the parties. Therefore, if there is trade, where the object of sale does exist, but the mutual consent of the parties is not there, even then, the sale is invalid and impermissible. Thus, these two forms are included under “eating up each other’s property by false means”. Muslim jurists call the first form, al-bai’ al-batil, while the second form is given the name, al-bai’ al-fasid.
To explain the first condition, we can say that trade is the name of the exchange of one commodity with the other. Having commodity on one side and having no commodity against it is not trade. It is deception. The same holds good for interest-based transactions where the amount of interest is a return for the time allowed in a loan – and this time is no commodity. The same thing happens in speculation and gambling. Here, the commodity does exist on one side, but the existence of a commodity against it is doubtful. Similarly, there are transactions based on forward trading where the commodity does not exist but a deal is made for its sale/purchase. Here you have commodity on one side and nothing but a promise on the other. Therefore, this is just not trade. In fact, this is deception and a kind of fraud. Therefore, Muslim jurists have ruled it to be al-bai’ al-batil, a void transaction of sale. The explanation as given here eliminates all impermissible forms of trading.
As for the second condition, it covers a situation where a property is being exchanged for another property. Both do exist, but the transaction of exchange did not take place with mutual consent. Although this is a trade, yet it is a wrong and invalid type of trade. Therefore, it has been called fasid (invalid) and is not allowed.
The Reality of the Condition of Mutual Consent
However, there is a third kind in which there is commodity on both sides, and apparently the transaction has been affected with mutual consent, but the consent of one party has been obtained by compulsion and not by his free will. Therefore, this third kind is also included in the second one. For example, a person or company collects articles of daily use from all over the market, builds up a stock, raises prices on the higher side and starts selling. Since this is not available elsewhere in the market, the customer has no choice but to buy it from him at whatever price he may be selling it. In this situation, though the customer himself walks into the store and, obviously, buys it with his consent, but this consent is an outcome of compulsion and therefore, it is null and void.
Similarly, if a husband makes the conditions of living with his wife so thorny that she is compelled to forgo her due dower, then, this expression of ‘consent’ made by her while abandoning her right to receive the dower, is not considered as consent in the real sense of the term.
Or, take the example of a person who discovers that he is not going to get his valid job done without offering a bribe, and he becomes ready to offer a bribe, then, this willingness and consent is not of his own free will. Therefore, it is legally null and void.
Thus, it becomes very clear that the restriction in إِلاَّ أَن تَكُونَ تِجَـرَةً عَن تَرَاضٍ مِّنْكُم unless it be trade with your mutual consent justifies only those forms of buying, selling and trading the justification of which stands proved on the authority of the ahadith of the Prophet. Muslim jurists have simply codified them. So, all forms of buying, selling and trading prohibited and impermissible in the Shariah of Islam stand excluded from the approved core. To sum up, this one word of the Qur’an provides the key to the wonderful treasure of Muslim jurisprudence on the subject of al-buyu and al-ijara.
The third sentence of the first ayah 29 says وَلاَ تَقْتُلُواْ أَنفُسَكُمْ which has been literally translated here as “and do not kill yourselves”. According to the consensus of commentators, this includes suicide; as well as, killing each other unjustly. The first sentence of the ayah described the property rights of human beings at large and stressed that they be guarded. The present sentence, the third one we have before us right now, covers their right of life. Property has been mentioned in this ayah earlier than ‘life’, probably because injustice and negligence are very common in matter relating to property rights. No doubt, unjust killing is far more grave, yet customarily its frequency is lower. Hence, it comes later.
Ayah 29 closes with the statement إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيماً which means that the command given in this ayah – “do not kill anyone unjustly” – are commands that come to you as Divine Mercy, so that you can take your guard against falling into these misdeeds and thereby become liable to punishment in the life to come, and also that you may stay safe from punishments which could afflict you right here in the present life.
After that, the next ayah (30) says, وَمَن يَفْعَلْ ذلِكَ عُدْوَناً وَظُلْماً فَسَوْفَ نُصْلِيهِ نَاراً . It means, if despite the instructions of Qur’an anyone acts otherwise, and knowingly, aggressively and unjustly, takes what belongs to someone else, or kills anyone unjustly, Allah will cast him into Fire. Here, the restriction of ‘aggression’ and ‘injustice’ shows that, should this happen out of forgetfulness or mistake, it is not included in this warning.
[Taken from Maaruf-ul-Qur’an by Mufti Muhammad Shafi Usmani]