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Text and translation
English translation
2193. It was narrated from 'Amr bin Shu'aib, from his father, from his grandfather that the Prophet ﷺ forbade the deal involving earnest money. (Hasan)
Abu 'Abdullāh said: Earnest money refers to when a man buys an animal for one hundred Dinār, then he gives the seller two Dinār in advance and says: "If I do not buy the animal, then the two Dinār are yours."
And it was said that it refers, and Allāh knows best, to when a man buys something, and gives the seller a Dirham or less or more, and says: "If I take it (all well and good), and if I do not, then the Dirham is yours."
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Footnotes
1
[1] Earnest money: A kind of down payment which is counted towards the cost of the goods if the transaction is completed, and which is kept by the seller if the transaction is cancelled. This is commonly referred to as a non-refundable 'deposit' or 'down payment'.
Commentary
تخريج: [حسن] والحديث السابق شاهد له.
'Amīr San'ānī said in Subulus-Salām Sharh Bulughul-Marām: "The jurists are at variance regarding the permissibility of this transaction. Imam Mālik and Shāfi'i declared it illegal due to the Hadīth prohibiting it. They declared it illegal due to another reason as well; because it involves an unreasonable condition, it is cheating as well. It also involves a trick to consume others' wealth through unlawful means." This opinion seems to be correct; because the seller does not give anything or any benefit to the buyer in exchange for the deposit he receives from the buyer; and taking one's property without exchange is impermissible. Besides this, accepting the sold item back is rewarding. (See. Hadīth: 2199). The condition of deposit is made lest the purchaser return the bought merchandise. It is an act which keeps one away from doing a good deed, which cannot be appreciated.
