Sale of an eye with the exclusion of the benefit (a jurisprudential study on the doctrine of the Maliki masters)

Abstract

The research addresses the topic of “Selling Property While Retaining Its Use”, which is defined as selling the ownership of an asset while keeping its usufruct (right of use) for the seller for a specified period mentioned in the contract. This method is used as a financing tool, particularly in real estate and similar sectors. The topic has been chosen due to the legal challenges Islamic finance faces in both Western and Arab countries, alongside the need for innovative financial solutions that minimize risks without violating Shariah principles. The study aims to establish the jurisprudential basis for this transaction to facilitate its adoption by Islamic financial institutions. The importance of the topic lies in the fact that this model is already being applied in practice, such as by the American company “La Riba”, yet it has not received sufficient attention in Shariah studies or practical applications, making it necessary to address it through research. The research adopts the inductive method by referring to the principles of the Maliki school of thought, Islamic texts, and scholarly opinions, while discussing and responding to opposing views. The conclusion of the research is that, according to the Maliki school, it is permissible to sell property while retaining its usufruct, based on the explicit Hadith of Jabir on the subject. It is required that the period of usufruct retention be clearly specified, with its determination relying on common practice and expert opinion to ensure that the asset does not undergo substantial change depending on its type, time, and location. The seller may lease the retained usufruct to the buyer or to others. Furthermore, the price may include a portion paid upon contract execution and the remainder structured as lease installments. Liability transfers to the buyer upon conclusion of a valid binding contract, and the buyer is permitted to resell the property, provided that the new buyer is informed of the retained usufruct.»