Beyond Interest: The Legal Development of Bayʿ al-Wafāʾ in Hanafi Legal Thought

Abstract

Credit relations in Muslim societies have attracted significant scholarly attention across disciplines due to the prohibition of interest. In the Ottoman Empire, renowned for its vast resources, the presence of sophisticated credit mechanisms alongside its strong Muslim identity has often been perceived as paradoxical. While this apparent contradiction has been extensively studied, the perception and legitimacy of these credit mechanisms within Islamic law, particularly in English-language scholarship, remains underexamined. This study addresses this gap by analyzing bayʿ al-wafāʾ, a significant financing mechanism in which asset ownership is temporarily transferred to a lender in exchange for a loan, with the understanding that the asset will be returned upon full repayment. This transaction, employed for centuries across diverse regions as an interest-avoiding solution, has been extensively debated within Hanafi jurisprudence. This research chronologically examines bayʿ al-wafāʾ’s integration into Hanafi legal thought from its emergence through the 18th-century Ottoman Empire, drawing on primary sources across various genres of Hanafi legal literature. The findings reveal that bayʿ al-wafāʾ could not be categorized within existing Islamic contract frameworks. Instead, it is recognized as a contract with unique provisions deriving legitimacy from custom and necessity. This study illuminates both how this transaction achieved legal and legitimate status within Hanafi jurisprudence and, more broadly, demonstrates the dynamic evolution of Islamic law within the Hanafi school from the 10th to 18th centuries. Through this analysis, this study demonstrates how the paradoxical challenge of providing interest-free financing was resolved within the framework of Islamic legal principles.

1. Introduction

The dramatic transformation in global perspectives on religion has profoundly influenced connections to intellectual traditions, particularly within Islamic jurisprudence. The modern conception of Islamic law emerged largely as an attempt to recover lost traditions. According to this view, which draws heavily from orientalist scholarship, Islamic legal norms are perceived to be exclusively produced through the methodological framework of uṣūl al-fiqh. This perspective has unfortunately led to a misconception that generating new Islamic legal norms in contemporary contexts through furūʿ al-fiqh is impossible. However, numerous scholarly studies examining the adaptability of Islamic law through fatwas have challenged this assumption by demonstrating its fundamental inaccuracy.1 These investigations have fostered an alternative understanding that acknowledges the complementary roles of both uṣūl and furūʿ in Islamic legal development. This more accurate view recognizes that a fatwa issued for a specific case, after being cited and endorsed by subsequent jurists and gaining scholarly consensus, gradually becomes incorporated into furūʿ al-fiqh, thus becoming an integral component of Hanafi doctrine.2 Importantly, this process does not contradict uṣūl al-fiqh principles but rather operates within their broader framework. Even when explicit methodological explanations are not provided in discussions of derivative legal issues, references to concepts indicate that compatibility with fundamental legal principles is continuously maintained in the background. By applying this integrated understanding of legal development, this study will examine the operation of Islamic law through the compelling framework of credit relations, offering a practical illustration of legal adaptability within economic contexts.

Credit relations3 in Muslim societies have long been a subject of scholarly interest, particularly due to the prohibition of interest (ribā), especially for Ottoman society.4 Ottoman archival sources undeniably demonstrate the existence of vast and active credit networks among Muslims.5 Simultaneously, the records on money foundations strongly support this observation. The authors of the initial studies on this subject could not conceal their astonishment that, despite the prohibition of interest, these foundations effectively met the financing needs of Muslim society (Barkan 1966; Mandaville 1979). Subsequently, numerous studies have examined the legitimacy and functioning of these institutions across different time periods and geographical regions (Çizakça 1995; Özcan 2003; Kaya 2003; Bulut 2019). This study approaches Muslim credit relations from a legal perspective, focusing specifically on one of the transactions utilized as a method of establishing credit relations: Bayʿ al-wafāʾ. This contract, which emerged as a legal solution or stratagem (ḥīla) against interest-based transactions, became so widely accepted and legitimized that, by the 19th century, it secured its place in the Mecelle, the product of the Ottoman Empire’s codification processes. Furthermore, as a contract that was not originally included in the early works of the Hanafi school but was later incorporated into Hanafi jurisprudence, it provides an appropriate foundation for observing the process by which new transaction forms were integrated into Islamic law. Additionally, since it is not a recently developed contract, numerous scholars throughout history have expressed opinions on this matter, readily providing the necessary material for an in-depth study of the subject. For these reasons, I have selected bayʿ al-wafāʾ as the subject of this study.

Bayʿ al-wafāʾ is a type of transaction designed to meet financial needs. Under this operation, ownership of an asset is temporarily transferred to a lender in exchange for a loan, accepting that the asset will be returned to its original owner upon full repayment of the borrowed amount. The transaction proceeds as follows: Individual A, who requires financing and owns a property, approaches Individual B, who is capable of providing the needed funds. Individual B purchases A’s property, paying the amount upfront, with both parties agreeing that A may repurchase it by reimbursing the same amount at a predetermined maturity date. Upon maturity, if A repays the original sum to B, B is obligated to return the property to A. Through this mechanism, A secures immediate liquidity without permanent loss of the asset, as ownership is restored upon repayment. Meanwhile, B retains possession of and derives benefit from the property during the interim period until A exercises the redemption right. This arrangement effectively functions as a secured financing instrument, allowing A to address temporary liquidity needs while preserving long-term ownership rights and enabling B to obtain usufructuary rights as a form of compensation for the capital provided.

This transaction was not regarded as an outright sale (bayʿ) because, in a conventional sale, ownership of the asset transfers irrevocably to the buyer, who thereby gains full ownership rights over it. In bayʿ al-wafāʾ, however, the buyer (financier) is contractually bound to return the property to the original owner upon repayment of the principal sum. The term wafāʾ (fulfillment) itself denotes the seller’s expected fidelity to this repayment obligation, while the buyer’s reciprocal pledge to reconvey the asset effectively transforms the transaction into a credit instrument. For this arrangement to remain valid, the buyer must refrain from irrevocably alienating the property—whether through sale, donation, or other means—to any third party. Any such alienation would invalidate the contract, reflecting the constrained nature of the buyer’s ownership rights and discretionary powers over the asset. Crucially, bayʿ al-wafāʾ also diverges from a pledge (rahn), as Islamic pledge law prohibits the pledgee from deriving usufruct (intifāʿ) from the collateralized asset, unless the owner permits use. By contrast, the economic rationale of bayʿ al-wafāʾ hinges on the financier’s temporary usufructuary rights (e.g., rental income or occupancy) during the contract period. Thus, the transaction serves a dual purpose: it provides liquidity to the seller while permitting the buyer to benefit from the asset’s utility until redemption.

This transaction, which has been employed for centuries under various appellations across a wide geographical region, has been the focus of numerous studies concerning its origins and its rulings within Hanafi fiqh. Recent studies suggest that bayʿ al-wafāʾ first appeared in Hanafi legal texts during the 4th/10th century.6 Within the Hanafi madhhab, divergences concerning the juridical classification of the contract have persisted since its initial appearance in legal literature and have endured for centuries.7 Notwithstanding its contentious status, bayʿ al-wafāʾ was not only utilized as a financing instrument within Ottoman society but also served as the foundation from which other contractual forms—such as bayʿ al-istighlāl, ferāğ bi-l-wafāʾ and ferāğ bi’l-istiğlāl —were derived. In the nineteenth century, it was codified as a distinct contractual category within the Mecelle. In the present era, it continues to draw scholarly interest, particularly in the field of Islamic banking.8 While this research is firmly situated within the discipline of legal history and does not claim to make direct contributions to the field of Islamic finance, it nonetheless offers valuable insights for contemporary banking researchers. Scholars developing wafā-like financial products or determining their juridical status may benefit significantly from examining this millennium-old jurisprudential experience presented in a systematic manner. The comprehensive analysis of how Hanafi jurists addressed and classified this transaction over centuries provides a rich intellectual foundation that can inspire modern approaches to adapting contemporary financial instruments to conform with Islamic legal principles. This historical perspective offers banking practitioners access to a sophisticated legal tradition that confronted similar challenges of balancing commercial necessity with religious compliance, potentially informing innovative solutions to comparable tensions in contemporary Islamic finance.

While previous studies have addressed certain aspects of bayʿ al-wafāʾ, there remains a significant gap in the literature regarding its development within the Hanafi school of thought, its treatment in Ottoman legal commentaries and annotations, and its presence in the fatwas issued by Shaykh al-Islām, who is the head of the Ottoman scholar group. This study addresses this gap through a systematic examination of primary sources. Methodologically, it follows a chronological approach, beginning with the initial appearances of this contract in legal texts. The primary sources examined include the wāqiʿāt compilations from the Transoxiana region, followed by furūʿ al-fiqh texts, commentaries on texts compiled in the Mamlūk region, and finally, the commentaries and annotations produced by Ottoman scholars, along with fatwa collections containing the legal opinions of Shaykh al-Islāms. Among the commentaries and annotations, this study focuses on four seminal works that have been extensively studied within the Hanafi school: al-Hidāya sharḥ Bidāyat al-Mubtadī, Wiqāyat al-Riwāya fī Masā’il al-Hidāya, Durar al-Ḥukkām Sharḥ Ghurar al-Aḥkām, and Multaqā al-Abḥur. These texts were not merely academic references but formed the core of the educational curriculum for judges (qādīs) and jurisconsults (muftīs) in Ottoman madrasas. Their significance extended beyond educational purposes, as particularly, Durar al-Ḥukkām Sharḥ Ghurar al-Aḥkām and Multaqā al-Abḥur achieved a quasi-canonical status within the Ottoman legal system.9

For fatwa collections, this study examines compilations from several prominent 16th-century Shaykh al-Islāms, including works by İbnü’l-Edhemî el-Mağnisavi (d. after 948/1541), Saruhani Lâlî Efendi (d. 971/1563), Bozanzâde Mahmud, Veli b. Yegan (d. 998/1590), and Boyabâdî Sağır Mehmed Efendi (d. 1066/1656). The incorporation of these sources addresses a significant gap in existing scholarship, as all 16th-century fatwa collections listed here—with the exception of Veli b. Yegan’s work—remain in manuscript form and have not been comprehensively utilized in previous research on the wafāʾ contract. By integrating these unpublished collections into the present investigation, this study substantially expands the corpus of 16th-century Ottoman Hanafi sources specifically pertaining to the wafāʾ institution. For the 17th century, the analysis incorporates Fetāvā-yı Yahyā Efendi, Fatāvā-yı Abdurrahīm, Fatāvā-yı Alî Efendi, and Fatāvā-yı Feyżiyye. Among these sources, Fatāvā-yı Alî Efendi and Fatāvā-yı Feyżiyye have been published, while the remaining two collections exist only in manuscript form. The systematic inclusion of these fatwa compilations as integral components of a comprehensive analysis of the wafāʾ contract provides invaluable data for both Ottoman legal studies specifically and Hanafi jurisprudence more broadly. These sources offer direct insight into the practical application and dynamic interpretation of legal principles by Ottoman–Hanafi scholars, presenting evidence that is more immediate and practice-oriented than the theoretical discussions typically found in traditional furūʿ literature.

This study employs a distinctive methodological framework to systematically analyze the evolution of Islamic jurisprudence through the lens of bayʿ al-wafāʾ. By focusing on this particular contract, which emerged as a later addition to fiqh literature, this research provides a unique opportunity to observe the adaptive mechanisms of Islamic law when confronting novel issues. The Hanafi school serves as the primary analytical framework, with Hanafi legal sources constituting the core primary materials. To ensure chronological continuity across centuries of juristic development, this study examines the major centers where Hanafi legal thought flourished sequentially: Baghdad, Transoxiana (Māwarāʾ al-Nahr), Mamluk territories, and the Ottoman Empire. This geographical progression is complemented by an examination of the predominant legal genres specific to each region: wāqiʿāt literature in Transoxiana, commentaries (shurūḥ) in Mamluk territories, and both Shaykh al-Islāms fatwas and commentaries in the Ottoman context. This dual approach—chronological continuity coupled with genre diversity—maximizes source variety while enabling comprehensive comparative analysis across different juridical traditions within the Hanafi school. While this study’s descriptive chronological investigation of bayʿ al-wafāʾ in these sources might suggest a purely descriptive approach, the comparative analysis between early and later juridical treatments reveals much more: it illuminates both the specific adaptation of the wafāʾ contract into Islamic law and the broader operational mechanisms of Hanafi jurisprudence when confronting novel legal questions. The central thesis argues that bayʿ al-wafāʾ’s trajectory—from marginality to mainstream acceptance—exemplifies Islamic law’s capacity for dynamic evolution, challenging static perceptions of juristic tradition. This chronological and comparative examination contextualizes legal transformations within their respective historical frameworks, making this study not merely a literature review on bayʿ al-wafāʾ but an analytical and comparative investigation that connects these sources to their historical contexts while advancing a central argument about Islamic legal adaptability.

2. The Incorporation of Bayʿ al-Wafāʾ into Hanafi Jurisprudence Within the Transoxiana Fatwas and Authoritative Texts

Bayʿ al-wafāʾ is a transactional form that subsequently emerged as a legal solution to ribā (usury). Hence, it is absent from the foundational and primary texts of the Hanafi madhhab and does not appear in the compilations of mukhtaṣar (abridged) works that build upon these primary texts. Accordingly, no direct mention of bayʿ al-wafāʾ is found in the doctrinal compilations representing the established views of the early school or in the legal writings rooted in the customary practices and juristic conventions of Baghdad and the Iraqi region. However, with the ascendancy of the Hanafi school in Transoxiana (Māwarāʾ al-Nahr), the earliest Hanafi legal opinions on bayʿ al-wafāʾ begin to appear. Hanafi jurists in this region, while granting the highest authority to the foundational doctrines under the categories of ẓāhir al-riwāyah and nawādir, developed a new literary genre, i.e., wāqiʿāt, to facilitate the adaptation of Islamic law to evolving circumstances. This genre enables the legal reasoning (ijtihad) of the jurists who came after the founding figures to be integrated into the Hanafi tradition. Authority within the school of thought is established through the documentation of ijtihad in the form of fatwas, which gain legitimacy over time by being referenced and reaffirmed in subsequent fatwa compilations (Bedir 2014). This methodological innovation allowed Hanafi jurisprudence to adapt to new circumstances while maintaining doctrinal continuity, with bayʿ al-wafāʾ representing a significant case of such adaptation in Islamic law.

The historical development of bayʿ al-wafāʾ in Hanafī jurisprudence emerges through a textual genealogy beginning with 4th/10th-century references. Early attestations by al-Maydānī (d. 339/951) and al-Kamārī (d. 381/991) initially framed the transaction as bayʿ al-muʿāmala (Yılmaz 2023). The equivalence of this contract with bayʿ al-wafāʾ is clarified through another reference to al-Kamārī made by Ibn Māzah (d. 536/1141) in his al-Wāqiʿāt (Ṣadr al-Shahīd n.d.). The most authoritative early treatment appears in al-Nasafī’s (d. 537/1142) Fatāwā, which documents the formative 5th/11th-century debate between Transoxianan jurists regarding its essential nature. Certain jurists, including ʿAtāʾ b. Hamza al-Sughdi (d. 461/1068), Sayyid Abu Shujāʿ, and Qādī Hasan Māturīdī (d. 511/1117), categorized this arrangement as a pledge (rahn). Conversely, Qādī Isbījābī (d. 480/1087) and ʿAlī b. Abī Sahl al-Zāminī (d. 494/1101) issued juridical opinions (fatwa) establishing the wafāʾ contract as a legitimate form of sale (Nasafī n.d.). This foundational divergence established the conceptual parameters for subsequent Hanafī discourse on the contract and will become increasingly apparent in works belonging to the wāqiʿāt genre.

Another perspective on the legal nature of the contract appears in al-Hāwī by al- Ḥaṣīrī (d. 500/1107). The significance of this text lies in the fact that its view would later be adopted by the Hanafi school, albeit in a slightly more developed form, as the foundational concept for the inkind contract:

Some scholars of our time have stated the following: “If no stipulation is included in the contract, we regard it as a valid sale from the perspective of the buyer, allowing them to utilize the property as they would with any other asset. However, [if no condition is specified in the contract] we consider it a pledge on the part of the seller. In such cases, if the buyer wishes to sell the property, the qadi cannot authorize it, and whenever the seller repays the price, the buyer is obligated to accept it and return the property. This is because the sale represents a combination of two legal constructs—sale and pledge—similar to a grant on the condition of consideration or a grant in the illness of death. There are numerous contracts that embody dual rulings. We have accepted this practice due to its necessity for people, as it provides a means to avoid ribā (usury), particularly in cases involving vineyards. Renting vineyards is not an allowed practice. In Bukhara, it became customary for people to engage in long-term leases (ijarah al-tawilah), which could only be facilitated through the sale of the trees. This transaction is referred to as bayʿ al-wafā, which is why it was introduced. When a matter causes hardship for the people, its ruling is expanded.

(Ḥaṣīrī n.d.)

During the same era, the juristic debate over the sentence of the bayʿ al-wafāʾ contract not only persisted but also became increasingly complex. In addition to the prevailing legal opinions that classified bayʿ al-wafāʾ either as a pledge (rahn) or as a valid sale (ṣaḥīḥ bayʿ), further interpretations emerged, including the view that it could constitute a fāsid contract or, under specific conditions, even a null sale (bayʿ bātil). Simultaneously, the range of legal issues associated with this contract expanded significantly, growing more intricate and multidimensional. Jurists debated how to resolve disputes when one party asserted that the transaction constituted a final sale (bayʿ bāt), while the other maintained that it was a bayʿ al-wafāʾ.10 Questions arose regarding whether the seller was entitled to claim compensation for the produce of a vineyard subject to bayʿ al-wafāʾ if the buyer consumed it before the property was reclaimed, or whether the original seller could recover the property from a third-party buyer if the original customer sold it through an absolute sale and subsequently disappeared. Further fatwas involved determining whether property sold under bayʿ al-wafāʾ was subject to inheritance laws before its return to the original owner, whether expenses incurred on the goods during the contract’s term were eligible for reimbursement, and what legal consequences followed if the goods were damaged or destroyed while in the buyer’s possession (Usrūshanī n.d.).

The legal discussion surrounding bayʿ al-wafāʾ is most vividly illustrated in the Fuṣūl, a genre of works that compile jurisprudential issues derived from the wāqiʿāt tradition. These 13th-century texts stand out for their comprehensive treatment of the subject: one authored by Abū al-Fath Majd al-Dīn Muhammad b. Mahmūd al-Mahmūd al-Usrūshanī (d. after 637/1240) and the other by Zayn al-Dīn al-Mergīnānī (d. around 550/1155), the grandson of the renowned author of al-Hidāya. These works not only provide the most extensive narration of bayʿ al-wafāʾ but also became the most frequently cited references on the subject in subsequent fiqh literature.

While the issue of bayʿ al-wafāʾ occupied a significant place in wāqiʿāt literature, it also began to appear in classical fiqh texts from the 12th century onward, particularly in works that sought to compile foundational views and jurisprudential debates within the Hanafī madhhab. One of the earliest examples of this trend is al-Muhīt al-Burhānī by al-Burhān al-Marghīnānī (d. 589/1193), who engages with the subject by incorporating quotations from wāqiʿāt works (Burhān al-Sharīʿa 2004). Another key text is Badāʾiʿ al-Sanāʾiʿ by al-Kāsānī (d. 587/1191), who passed away just before the turn of the 13th century. In his chapter on zakāt, al-Kāsānī addresses the contract in question, stating that, in the case of bayʿ al-wafāʾ, a customary practice among the people of Samarkand, the issue arises as to which party is responsible for paying zakāt (Kāsānī 2003).

Following al-Kāsānī, al-Marghīnānī (d. 593/1197) also discusses the issue in his renowned work al-Hidāya, a commentary on Bidāyat al-Mubtadī. The inclusion of bayʿ al-wafāʾ in al-Hidāya, an influential text authored by al-Marghīnānī—who is often regarded as a central figure in the lineage of Hanafī jurisprudence—significantly elevated the prominence of the issue within furūʿ al-fiqh literature. In his discussion, al-Marghīnānī examines bayʿ al-wafāʾ within the context of ikrāh (coercion) and provides a concise yet comprehensive summary of the differing legal opinions regarding its classification. Specifically, he outlines four distinct positions on the legal nature of bayʿ al-wafāʾ: as a fāsid (defective) sale, a rahn (pledge), a bātil (void) sale, or a jāʾiz (permissible) sale. In subsequent fiqh literature, discussions and interpretations of bayʿ al-wafāʾ would be fundamentally shaped by these four juristic perspectives (al-Marghīnānī 2011).

3. The Trajectory of the Dispute in Mamlūk Commentaries

The incorporation of the bayʿ al-wafāʾ contract into Ḥanafī fiqh literature, despite its absence from the foundational texts of the madhhab and the uncertainty surrounding its precise origins, can be broadly outlined as discussed above. In the subsequent period, the Mongol invasions in the Transoxiana region led to the displacement of its legal heritage to safer areas further west because the scholars preferred to take refuge in the lands under the protection of a politically and militarily powerful figure. Manuscripts that have survived from this period indicate that, during the 13th and 14th centuries, the Ḥanafī school of law experienced significant growth in the Mamlūk territories, fostering a strong tradition of commentary writing among scholars of this school (Bedir 2014). Central to this tradition was the text al-Hidāya, which served as a focal point for scholarly engagement. Hanafī jurists in the Mamlūk region, in their commentaries on al-Hidāya, addressed the contract of bayʿ al-wafāʾ, offering detailed explanations and analyses. Notably, even in commentaries on other fiqh texts that did not originally include discussions of bayʿ al-wafāʾ, some authors incorporated explanations of this contract as if they were commenting on al-Hidāya itself (al-Zaylaʿī 1315 AH; al-Musannifak n.d.; Ahīzāde n.d.). It is possible to trace the development of Hanafī legal thought on the contract of bayʿ al-wafā from the second half of the 13th century to the 15th century by examining these works.

The first notable difference in the commentaries of this period is their inclusion of an explanatory definition of bayʿ al-wafāʾ, aligned with the purpose of their composition. The wāqiʿāt-type works primarily focused on the specific wording used in the execution of the contract, such as the inclusion or exclusion of certain conditions, rather than providing a holistic definition. This was because their primary aim was to elucidate the legal nature of the transaction rather than to offer a comprehensive definition. In contrast, the commentaries compiled in the Mamlūk region in the 13th–15th centuries begin by explaining how bayʿ al-wafā is performed. These works typically identify two primary contractual variants: the debt-based formulation (“I am selling you this item in exchange for the debt I owe you, and whenever I repay the debt, it shall revert to me.”), which predominated in Transoxianan sources (Ṣighnākī n.d.; Tāj al-Sharīʿa n.d.; Itqānī n.d.), and the price-based formulation (“I am selling you this item for a thousand, and if I repay you, you will return it to me.”) that gained currency in later Mamlūk jurisprudence; while some authors include both definitions, most opt to provide only one (Kākī n.d.; Kurlānī n.d.; al-Bābartī 2007; al-ʿAynī and al-Dīn Maḥmūd ibn Aḥmad 2000).

After defining bayʿ al-wafāʾ, the authors elaborate on the four opinions presented in al-Hidāya, drawing upon quotations from works of the wāqiʿāt genre. The most frequently cited sources include Najm al-Dīn al-Nasafī’s and Qāḍīkhān’s Fatāwā, as well as Ushrushanī’s al-Fuṣūl. Some authors also specify the names of the scholars associated with each opinion (Itqānī n.d.; al-Zaylaʿī 1315 AH). The careful attribution of opinions to specific scholars not only preserved the Hanafī tradition’s characteristic pluralism but also demonstrated the Mamlūk jurists’ self-conscious role as curators and interpreters of an established legal corpus.

There is still uncertainty regarding the ruling on the contract. Although a few works emphasize a single view, it will take more time for a general consensus to form around a particular perspective. The initial indications of the tendency for general impressions to concentrate on a particular view can be observed in the explanations of Marghīnānī’s statement regarding bayʿ al-wafāʾ. He cites it as the opinion of the scholars of Samarkand—one of the four opinions presented in his text. He describes it as “a valid sale that entails certain legal provisions, as is customary, due to necessity” (al-Marghīnānī 2011). Hanafi authors first seek to clarify these “certain legal provisions” specific to bayʿ al-wafāʾ. They explain that, according to these, the buyer can benefit from the property acquired through bayʿ al-wafāʾ, excluding the sale or donation of the property to another person (Tāj al-Sharīʿa n.d.; Itqānī n.d.; Kākī n.d.). These explanations are followed by an emphasis on the legal value of tradition. It is argued that a contract can be deemed permissible not only due to necessity but also because of “customary practices” in the al-Zaylaʿī’s work. Also, it is referenced that the principle that rules can sometimes be adapted or set aside based on custom, citing the contract of istisnāʿ as an example (al-Zaylaʿī 1315 AH). This discussion then elaborates on what constitutes “muʿtād” (customary practice). It is noted that when people engaged in bayʿ al-wafāʾ, they did not consider these transactions as irreversible and irrevocable in the same way as an outright sale. This, in turn, led the scholars of Samarkand to permit the seller to return the money to the buyer. Likewise, they maintained that the buyer was obligated to return the goods to the seller and to uphold the terms of the agreement (Itqānī n.d.; al-Bābartī 2007). These explanations were subsequently followed by the argument that the choice of wording in al-Hidāya indicates that its author, al-Marghīnānī, adhered to this view.

The most influential statements regarding the juridical verdict on bayʿ al-wafāʾ were made by al-Bazzāzī immediately following this process, which lasted until the early 15th century. In his well-known fatwā collection, al-Fatāwā al-Bazzāziyya, he presents the various opinions on bayʿ al-wafāʾ in nine articles within the section on fāsid (defective) sales. At the conclusion of this discussion, al-Bazzāzī articulates his own position, which he refers to as qawl al-jāmiʿ (the comprehensive opinion). He employs a vivid zoological analogy, likening bayʿ al-wafāʾ to a giraffe (al-Bazzāzī 1310 AH). The giraffe analogy serves as an elegant metaphor to explain the distinctive nature of bayʿ al-wafāʾ. Just as the giraffe exhibits characteristics shared with other animals—with its head resembling a camel’s, its horns similar to those of cattle, and its patterned hide reminiscent of a tiger’s—yet remains a distinct species in its own right, the bayʿ al-wafāʾ contract shares features with other contractual forms while maintaining its unique identity (Kaan 2018). From its defective sale aspects, the parties retain the authority to dissolve the contract at their discretion. From its valid sale characteristics, the contract permits the legitimate utilization of the sold item’s yields, with the benefits accruing to the purchaser while the item remains in their possession. From its pledge elements, the purchaser is prohibited from selling or pledging the item to another party, the debt is nullified if the item perishes, and any diminishment in the item’s value proportionally reduces the outstanding debt (Yelek 2014).

In the 16th century, this opinion was cited by Ibn Nujaym (d. 970/1563), who explicitly asserted that one should not deviate from Bezzāzī’s qawl al-jāmiʿ when issuing a fatwa (Ibn Nujaym 1893). In another work, Ibn Nujaym, similar to earlier commentaries, grounds his legal explanations for the validity of bayʿ al-wafāʾ in the principles of custom and necessity. He relies on the maxims that “custom can be used as evidence in legal rulings” and “need is considered a necessity”(Ibn Nujaym 1983). As a result, these works continue to reflect the diversity of opinions on bayʿ al-wafāʾ. Over time, however, the view of the Samarkand scholars, as expressed in al-Hidāya—that the contract is valid and permissible to apply in accordance with custom—gained prominence. It is emphasized that this contract was recognized as a new and unique form within Hanafi jurisprudence, a hybrid of existing contracts, even though it shared certain similarities with them. Nevertheless, it is important to note that this development was specific to the Mamlūk region, while a different trajectory emerged within the Ottoman Hanafi school of law. During the same period, Hanafī scholars in the Ottoman region do not consistently adhere to a single clear position on the ruling of bayʿ al-wafāʾ.

4. Transferring the Controversy to a New School: Bayʿ al-Wafāʾ in Ottoman Commentaries and Annotations

The tradition of writing commentaries among Hanafi jurists, which flourished in the Mamlūk region primarily focusing on Merginani’s al-Hidāya, continued to thrive among Islamic legal scholars in Ottoman territories. While al-Hidāya maintained its significance for Ottoman ulema, Wiqāyat al-Riwāya emerged as the central text for commentary production during the 15th century. Although Wiqāya was essentially a curated selection from al-Hidāya, it excluded discussions of bayʿ al-wafāʾ. Consequently, most commentaries on Wiqāya did not address this contractual form. Nevertheless, certain scholars incorporated explanations of bayʿ al-wafāʾ in their Wiqāya commentaries, discussing it within the same context established in al-Hidāya, despite its absence from the original text.

The 16th and 17th centuries witnessed a shift in the commentary tradition, which became dominated by two influential texts authored by Ottoman scholars. The first was Durar al-Ḥukkām, composed in the latter half of the 15th century by Molla Hüsrev (d. 885/1480), who uniquely authored both the original legal text, Ghurar al-Aḥkām, and its commentary. The second was Multaqā al-Abḥur, completed by Ibrâhîm b. Muhammad al-Halebî (d.956/1549) in 1517 (Has 2020). These works gained preeminence as primary reference sources in Ottoman madrasahs and in judicial (qazā) and legal advisory (ifta) functions, particularly from the mid-16th century onward.11 Their significance prompted the production of numerous commentaries, annotations, and talikas on these texts. While Durar al-Ḥukkām incorporated discussions of bayʿ al-wafāʾ, the author of Multaqā al-Abḥur excluded this topic. Despite this omission, subsequent commentators frequently addressed the issue in their analyses of Multaqā. Through careful examination of these commentaries, particularly those that include discussions of bayʿ al-wafāʾ, scholars can effectively trace the development of Hanafi jurisprudential thought on this contractual form throughout the Ottoman period.

Ottoman scholars inherited but critically engaged with earlier debates, as seen in their preference for the hybrid (qawl al-jāmiʿ) model in practice, despite doctrinal diversity. The 15th-century commentaries on Wiqāya generally present these disputes and their underlying legal rationales without explicitly favoring particular positions. However, by the late 15th and early 16th centuries, new perspectives and criticisms concerning bayʿ al-wafāʾ began to emerge in scholarly commentaries. One development addressed the contract’s relationship to the right of option (mukhayyar). Scholars noted that conceptualizing bayʿ al-wafāʾ as a sale with the right of option was inadequate, as this would make the ruling of the contract contingent upon fulfillment of a condition. This interpretation would render the contract null and void prior to condition fulfillment, creating practical and theoretical difficulties (Ahīzāde n.d., c.n 99). Another area of scholarly debate during this period concerned the concept of jest (hezl) and its application to bayʿ al-wafāʾ. This discussion stemmed from the proposition that bayʿ al-wafāʾ might be rendered void, similar to transactions conducted in jest (hāzil). Through careful deliberation, scholars reached a consensus that the jester (hāzil) consents to the direct cause of the transaction but not to its legal consequences (Karamānī n.d., c.n 516). Based on this distinction, they concluded that sales conducted by a jester remained legally valid despite this partial absence of intent.12

The pattern of not choosing one opinion from four regarding the legal status of bayʿ al-wafāʾ, characteristic of 15th-century commentaries, persisted into the 16th century. Commentators and glossators during this period primarily focused on presenting the diverse juristic opinions on bayʿ al-wafāʾ and referencing relevant precedents in earlier legal literature, without explicitly endorsing particular positions (Karā Çelebi n.d., c.n 789; Vānkulu n.d., c.n 65-002.). A shift occurred in the 17th century, when authors began incorporating explanations that either directly stated or implicitly suggested their own perspectives on the contract’s legal status. The predominant view that emerged, albeit with some exceptions13, characterized bayʿ al-wafāʾ as a valid (ṣaḥīḥ) sale with distinctive provisions, provided it was executed without explicit conditional clauses. In support of this view, scholars employed multiple strategies to reinforce their preferred interpretations. They cited authoritative statements in established legal texts, such as “the fatwa follows this opinion” (Shaykhīzāde 1998; Ḥādimī n.d.) and “one should not deviate from this view when issuing a fatwa” (Shurunbulālī n.d.), thereby lending weight to their position. Another approach involved asserting interpretive continuity by claiming that the original authors whose texts they commented upon shared their perspective on the matter (Muhammad ibn ʿAbd al-Halīm n.d.). Mostly, these scholars emphasized the critical importance of proper contractual structure—specifically advocating that bayʿ al-wafāʾ arrangements should be executed without explicit mention of the repurchasing condition (wafāʾ) within the contractual language itself. This technical distinction allowed the transaction to maintain formal validity while still accommodating its practical economic function.

Beyond commentaries, the 17th century witnessed the emergence of specialized treatises as vehicles for expressing definitive positions on bayʿ al-wafāʾ. The comprehensive treatise authored by Kazerūnī, a Meccan scholar, is notable. In this detailed work, which systematically examined disputes and issues concerning bayʿ al-wafāʾ throughout the Hanafi legal corpus, Kazerūnī concluded that the prevailing view in both practice and formal legal opinions (fatwa) was that bayʿ al-wafāʾ constituted “a valid sale that expresses certain provisions” (Yiğit 2020). This trajectory from scholarly ambivalence to emerging consensus reflects the dynamic nature of Islamic jurisprudence and its capacity for adaptive reasoning within established legal frameworks.

Ottoman legal scholars maintained a clear commitment to earlier Hanafi jurisprudential literature, as evidenced by their extensive references in commentaries and annotations by the 18th century. In discussions of bayʿ al-wafāʾ, Ottoman scholars demonstrated a notable preference for citing commentary authors such as al-Bābartī (d. 786/1384), Itqānī (d. 758/1357), and Ṣighnākī (d. 714/1314). Within the wāqiʿāt genre, Qâdîhan’s (d. 592/1196) Fatāwā received the most frequent citations, followed by Necmeddîn al-Nasafī’s Fatāwā, one of the earliest authoritative sources on the subject. The Fuṣûls and Bezzazī’s Fatāwā also maintained significant prominence in these scholarly discussions.

A particularly noteworthy development was the transmission method of wāqiʿāt materials. Rather than directly citing primary wāqiʿāt texts, Ottoman scholars increasingly accessed these materials through authoritative commentaries that had incorporated them.14 This pattern represents an important evolution in citation practices and textual authority. The Ottoman commentary tradition gradually distinguished itself from the Mamlūk approach to legal exegesis. While Mamlūk commentaries typically attempted to compile comprehensive collections of sectarian views, essentially creating extensive repositories of legal opinions, Ottoman commentaries adopted a more focused methodology. This distinctive approach resulted in commentaries of reduced volume that prioritized addressing specific legal questions rather than an exhaustive compilation. This transformation did not occur suddenly but evolved progressively over time. The development of the Ottoman school of jurisprudence and the distinctive character of its commentaries advanced in parallel, reflecting a broader evolution in legal methodology and scholarly priorities. This shift demonstrates how Ottoman legal scholarship maintained continuity with the earlier Hanafi tradition while developing its own distinctive approaches to legal interpretation and exposition.

5. Bayʿ al-Wafāʾ in the Ottoman Experience: Perspectives from the Shaykh al-Islām Fatwa Collections

The Ottoman scholar’s legal discourse on bayʿ al-wafāʾ extends beyond jurisprudential commentaries to include a rich alternative source: The fatwa collections of the chief muftis (Shaykh al-Islām). These collections represent an Ottoman adaptation of the wāqiʿāt genre first developed by the Transoxiana school of law and provide valuable insights into both the practical implementation and theoretical understanding of bayʿ al-wafāʾ in Ottoman society. These compilations originated from the systematic collection of rough drafts of fatwas issued by Ottoman Shaykh al-Islām, carefully preserved by fatwa clerks or the head of the fatwa office and subsequently organized into comprehensive volumes (Özen 2005). This meticulous documentation process created an invaluable repository that illuminates how bayʿ al-wafāʾ functioned in daily practice and how contemporary jurists approached this contractual arrangement. While jurisprudential commentaries extensively examine the theoretical classification of bayʿ al-wafāʾ, the fatwas in these collections take a more pragmatic approach, focusing primarily on operational aspects such as contractual validity, parties’ rights, and procedures for debt settlement and termination. However, these fatwa collections do not entirely neglect theoretical concerns, occasionally addressing questions of legal classification that dominate the commentary literature—thus creating a bridge between abstract jurisprudential principles and their practical application in Ottoman society. This dual focus on both practical application and theoretical classification makes these fatwa collections particularly valuable for understanding the complex interplay between legal theory and practice in the Ottoman implementation of bayʿ al-wafā.

Prior to Ebussuud Efendi’s (d. 982/1574) tenure as Shaykh al-Islām, official legal opinions (fatwas) lacked definitive statements regarding the contractual nature of bayʿ al-wafāʾ While certain practical issues—such as the permissibility of leasing the property back to its original owner or the buyer’s rights over its proceeds—allow us to infer the ʿulamāʾ’s stance on the contract’s provisions, even these references yield contradictory implications. Ebussuud Efendi, unlike his predecessors, provided explicit pronouncements on the legal status of bayʿ al-wafāʾ, though his opinions appear diverse across different contexts. This diversity in Ebussuud Efendi’s positions reflects his deliberate categorization of bayʿ al-wafāʾ as a sui generis contractual arrangement. As evidenced by the fatwa below, his reasoning hinges on the contract’s dual nature—bearing functional resemblances to existing legal constructs (such as sale and pledge) while ultimately constituting a distinct, fourth category of transaction. This nuanced interpretation is exemplified in his response to a direct inquiry regarding the contract’s classification, where he was asked explicitly whether bayʿ al-wafāʾ should be deemed a pledge (rahn), a void (bāṭil) sale, a defective (fāsid) sale, or an independent category. The question posed—in the original Arabic fatwa—is as follows: “Is bayʿ al-wafāʾ a pledge (rahn), a void (bāṭil) sale, a defective (fāsid) sale, or does it represent a fourth category? What is its exact ruling?” In his response, Ebussuud affirmed that bayʿ al-wafāʾ represented a distinct, fourth category of transaction. He explained that the contract resembled a conventional sale that permitted the buyer to lease the purchased goods back to the seller after taking possession. Simultaneously, it resembled a mortgage in that the seller retained the right to reclaim the property upon repayment of the original sum. Ebussuud concluded his analysis likewise in Fatāwā Bezzazi, comparing the hybrid nature of bayʿ al-wafāʾ to that of a giraffe—an animal with characteristics of multiple species, defying simple classification (Veli b. Yegan n.d.; Akgündüz 2018).

Despite the aforementioned fatwa, Akifzāde (d. 1223/1808), an 18th century Hanafi jurist, cited 17th-century Shaykh al-Islām Ankaravī Mehmed Emin Efendi’s (d. 1098/1687) statement that Ebussuud—along with Ibn Kemal (940/1534) and Zekeriyazāde (d. 1053/1644)—considered this contract a pledge (rahn) (Kaya 2007; Yelek 2014). This expression appears substantiated by another of Ebussuud’s fatwas that explicitly states, “bayʿ al-wafāʾ is a pledge(rahn)”(Veli b. Yegan n.d.; Akgündüz 2018). However, contextual analysis suggests this statement may have been specific to the particular legal question at hand rather than a comprehensive classification. Indeed, Ottoman scholars generally agreed that damage liability for property under bayʿ al-wafāʾ followed the same principles as those governing pledges, without necessarily equating the two contract types entirely. This contextual interpretation aligns with Kaya’s observation regarding 18th-century fatwas, namely, that “the provision in the relevant fatwa is the rule of the contract to which it pertains” (Kaya 2007).

Further evidence suggests that Ebussuud distinguished between pledges, and bayʿ al-wafāʾ emerges from two additional fatwas. In one, he provided distinct rulings for individuals who understood the difference between pledges (rahn) and bayʿ al-wafāʾ versus those who did not (Bozanzāde n.d.). In another fatwa addressing contractual disputes, Ebussuud established different standards of evidence: when claims of bayʿ al-wafāʾ conflicted with claims of bayʿ al-bāt (irrevocable sale), the evidence supporting bayʿ al-wafāʾ would be accepted; conversely, when claims of pledge conflicted with claims of bayʿ al-bāt, the evidence supporting bayʿ al-bāt would prevail (Boyabādī n.d.). This differentiated evidentiary standard clearly indicates that Ebussuud recognized these as distinct contractual categories with different legal implications.

Following Ebussuud, the previously mentioned fatwa referencing the giraffe conceptualization reappears in 17th-century legal discourse, notably in Fetāvā-yı Abdurrahīm, a Turkish fatwa collection attributed to Shaykh al-Islām Minkarizāde Yahya Efendi (d. 1088/1678).15 By the 18th century, this perspective—known as qawl al-jāmiʿ (the comprehensive opinion)—had become established in Ottoman legal circles. While not consistently appearing in official fatwa collections of the Shaykh al-Islām during this period, it featured prominently in compilations that sought to harmonize authoritative legal opinions designated as muftā-bih (suitable for formal legal opinions) and maʿmūl-bih (implemented in practice) (Kaya 2011). Akifzāde’s authoritative fatwa collection, Mecelletü’l-Mehâkim, confirms that Ottoman jurisprudence generally ruled on bayʿ al-wafāʾ contracts according to this hybrid classification (Kaya 2007). This indicates that the giraffe analogy had transcended its origins as a creative explanatory device to become the dominant interpretive framework for addressing the complex nature of bayʿ al-wafāʾ throughout Ottoman legal history.

The jurisprudential treatment of bayʿ al-wafāʾ as qawl al-jāmiʿ persisted in Ottoman legal discourse from Ebussuud’s era through the codification of the Mecelle in the late 19th century. Nevertheless, it would be inaccurate to suggest that Ottoman scholars unanimously agreed upon this position, as evidence to the contrary persists throughout subsequent centuries. In the 17th century, Bālīzāde Mustafa Efendi (d. 1073/1662) asserted that bayʿ al-wafāʾ was treated as a pledge both in practical application and in formal legal opinions (Bālizāde n.d.). This perspective continued into the 18th century, with Shaykh al-Islām Dürri Mehmed Efendi (ö. 1149/1736) reportedly classifying bayʿ al-wafāʾ as fundamentally a pledge arrangement. The influential 19th-century jurist Ibn Ābidīn similarly maintained that the ruling on bayʿ al-wafāʾ is equivalent to a pledge (rahn) (Yelek 2014). The ambiguity surrounding bayʿ al-wafāʾ persisted within the Mecelle itself—the Ottoman civil code that represented the following centuries of Hanafi legal development. While the Mecelle generally appeared to adopt the qawl al-jāmiʿ approach, certain provisions contradicted this framework. Most notably, an article stipulated that the buyer could not derive benefit from goods acquired through bayʿ al-wafāʾ without the seller’s permission—a restriction characteristic of pledge relationships rather than the hybrid classification. This internal inconsistency did not escape the attention of contemporary legal scholars. Mehmed Said Bey addressed this tension directly in a treatise titled “ahkām-ı bayʿ al-wafāʾ” submitted to the Meshihāt Office. In this work, he attempted to reconcile the seemingly contradictory articles within the Mecelle by developing a harmonizing interpretation (Küçüksucu 2020). These dissenting viewpoints suggest that, despite the prevalence of the qawl al-jāmiʿ classification in formal doctrine, alternative interpretations retained significant scholarly support throughout Ottoman legal history.

While Ottoman juridical discourse primarily addresses the legal classification of the bayʿ al-wafāʾ contract as discussed above, another closely related issue concerns the specific manner in which this contract is established. A consistent emphasis throughout this discourse was the directive that conditions of repurchase should not be explicitly stated during the transaction process.16 Ebussuud’s fatwas identify two distinct procedural approaches to bayʿ al-wafāʾ implementation. According to the first method, the sale of goods subject to bayʿ al-wafāʾ was not finalized at the outset. Instead, the validity of the transaction remained contingent upon the repayment of the borrowed sum secured by the goods. If the debt was repaid within the stipulated timeframe, the sale contract was considered null and void, effectively never having occurred. Conversely, if the debt remained outstanding beyond the specified period, the sale transaction was deemed valid, with ownership of the goods transferring permanently to the creditor (Bozanzāde n.d.). This procedural framework appears consistently in the fatwas of prominent 16th-century Shaykh al-Islāms, including Ibn Kemal (Saruhanī n.d.), Saʿdī Çelebi (d. 945/1539) (Saruhanī n.d.), and Ebussuud (Bozanzāde n.d.). Supporting evidence of its practical implementation can be found in the sharia court records (sijils) of Üsküdar from the same period. By the 17th century, this process had achieved standardization, typically formulated as “if I am unable to pay by the due date, let the sale between us become a final sale” (Bilge 2020). The crystallization of this procedural language is evident in contemporary fatwa collections, demonstrating how the theoretical framework articulated by 16th-century jurists evolved into standardized legal practice (Muhammad ibn ʿAbd al-Halīm n.d.; Menteshzāde 1243 AH; Çatalcalı 2021).

The second procedural approach to establishing bayʿ al-wafāʾ contracts in Ottoman practice reversed the conditional relationship between debt repayment and contractual validity. Under this framework, the sale transaction was considered immediately valid upon establishment. The condition of debt repayment was instead tied to the termination of the contract, rather than its initial validation. This structure stipulated that, if the borrower repaid the debt within the specified timeframe, the contract would be terminated, and ownership of the goods would revert to the original seller. Conversely, if the debt remained unpaid by the deadline, the condition for termination would become invalid, and the sale would stand as permanent and irrevocable (Bozanzāde n.d.). While this alternative formulation appeared less frequently in formal fatwa literature, evidence of its implementation can be found in Ottoman court registers (Bilge 2020). Interestingly, regardless of which procedural framework was employed, fatwa literature consistently maintained that the borrower retained the right to reclaim the goods upon debt repayment—whether before or after the stipulated deadline (Bozanzāde n.d.; Muhammad ibn ʿAbd al-Halīm n.d.; Menteshzāde 1243 AH; Çatalcalı 2021). This right of redemption extended even to situations where the goods had been transferred to third parties.17

To address the practical challenges posed by this perpetual right of redemption, Ottoman legal practice may have introduced an additional mechanism: the integration of agency contracts into bayʿ al-wafāʾ arrangements. Court records indicate that bayʿ al-wafāʾ contracts were frequently constructed in conjunction with a power of attorney provision. Under this arrangement, the borrower appointed either the creditor or a third party as an agent authorized to sell the collateralized property in the event of default. This procedural innovation effectively circumvented the potential for transaction cancellation, as any subsequent sale of the property would legally be considered executed by the original owner through their designated agent, rather than by the creditor independently. While documentation of this agency practice exists in court records from the 15th and 16th centuries (Habib 2023), its implementation notably increased during the 17th century (Bilge 2020).

The fatwa collections of Ottoman Shaykh al-Islām addressed not only the classification and establishment procedures of bayʿ al-wafāʾ contracts but also delineated the specific rights and restrictions afforded to each contracting party. These jurisprudential determinations formed a comprehensive framework governing the practical implementation of these complex financial instruments. The fatwa literature granted substantial protections to the individual who borrowed funds by selling property under bayʿ al-wafāʾ arrangements. These protections included the following: First, the seller retained the right to reclaim the property upon debt repayment, regardless of whether this occurred before or after the stipulated maturity date. This perpetual redemption right represented a fundamental characteristic distinguishing bayʿ al-wafāʾ from conventional sales. Second, if the buyer transferred the property to a third party through sale or donation, the original seller maintained the right to invalidate such transfers. This protection prevented circumvention of the conditional nature of the arrangement. Third, the redemption right was inheritable, allowing the seller’s heirs to exercise the same recovery privileges in the event of the seller’s death before debt repayment. Fourth, the seller could claim compensation for damage sustained by the property while in the buyer’s possession, recognizing the seller’s enduring interest in the asset’s condition. The buyer in bayʿ al-wafāʾ transactions likewise received specific legal protections: The buyer held the right to terminate the contract and demand repayment at any time, whether before or after the maturity date, providing reciprocal flexibility in the arrangement. Regarding liability for property damage or destruction, the jurisprudence established a nuanced approach. The buyer bore compensation responsibility limited to the portion equivalent to the loan amount. Any value exceeding this amount was classified as a trust, for which the buyer incurred no liability absent negligence or misconduct. This balanced allocation of rights and obligations reflected the hybrid nature of bayʿ al-wafāʾ contracts, incorporating elements of both sale and pledge arrangements while establishing distinct parameters tailored to this specialized financial instrument.

The question of income rights is another central matter in bayʿ al-wafāʾ transactions. When individuals purchase goods through this arrangement, two primary scenarios emerge regarding benefit allocation: agricultural land generating crops and residential properties producing rental income. Ottoman legal scholars held divergent positions on this matter, as evidenced by contradictory fatwas issued by the Shaykh al-Islām authorities. Ibn Kemal and Ebussuud explicitly declared that income from goods under bayʿ al-wafāʾ belongs to the original seller. However, they disagreed on compensation requirements when buyers consumed this income. Ibn Kemal (Boyabādī n.d.) and Saʿdī Çelebi (Saruhanī n.d.), maintained that no compensation was necessary, while Fenārizāde (Saruhanī n.d.) and Ebussuud (Bozanzāde n.d.) ruled that buyers must provide compensation. Sunullah Efendi’s (d. 1021/1612) fatwa introduced a nuanced position, stating that, if sellers permitted buyers to use the income, no compensation would be required for consumed proceeds (Ünaldı 2018). In the following century, Zekeriyazāde Yahya aligned with Ebussuud’s position (Muhammad ibn ʿAbd al-Halīm n.d.), but other fatwa collections presented different rulings. The collections Fetâvâ-yı Abdurrahīm and Fetâvâ-yı Alî based their determinations on seller permission (Menteshzāde 1243 AH; Çatalcalı 2021). If sellers granted prior authorization—thereby legitimizing use—and buyers consumed products accordingly, no compensation would be required upon contract termination. Without such permission, compensation became mandatory. Fatāvā-yı Feyżiyye later modified this stance, declaring that compensation would not be required regardless of permission status (Feyzullah 2009). This complex legal issue directly relates to bayʿ al-istighlāl, another transaction type designed for obtaining capital. Despite these scholarly disagreements, historical evidence confirms these financial instruments were widely employed throughout Ottoman society even before the 16th century (Habib 2023). A comprehensive resolution of these intricate legal questions would require further specialized research beyond the scope of the current analysis.

Another legal matter addressed in Ottoman jurisprudence concerns dispute resolution when parties disagree about the nature of their contract after its formation. Specifically, conflicts arise when one party asserts that a transaction constitutes an absolute sale, while the counterparty maintains that it represents a bayʿ al-wafāʾ arrangement. This issue appears consistently throughout Ottoman legal history, with virtually every Shaykh al-Islām providing fatwas on the matter. These rulings appear even in the earliest texts documenting bayʿ al-wafāʾ. The consensus position established in these fatwas is clear: when disputes arise regarding contract classification, the evidence presented by the party claiming bayʿ al-wafāʾ status receives preferential consideration. Beyond this core principle, Ottoman jurists addressed several additional requirements governing bayʿ al-wafāʾ transactions, though these generated fewer formal opinions. These supplementary conditions include the following: The property must not be common property; both the property and its price must be clearly established; the property must be properly delivered to the buyer; the contractual term must be explicitly determined. These requirements serve to clarify the procedural framework for validly executing bayʿ al-wafāʾ transactions within the Ottoman legal system, ensuring proper documentation and execution of these specialized financial arrangements.

The fatwa collections of Ottoman Shaykh al-Islām from the 16th and 17th centuries provide extensive guidance on numerous aspects of bayʿ al-wafāʾ transactions. Unlike jurisprudential commentaries, which often focus on theoretical discussions of contractual provisions, these fatwa collections predominantly focus on practical implementation concerns that directly impacted Ottoman commercial activities, including rights and responsibilities conferred upon contracting parties, proper contract establishment and termination procedures, and damage compensation protocols for property subject to these arrangements. When comparing these legal opinions to historical registers documenting actual societal practices, both alignment and discrepancies emerge. While many fatwa rulings reflect real-world applications, certain elements appear inconsistent with documented commercial behaviors. This suggests an evolving relationship between formal jurisprudence and market practices. Furthermore, the fatwa collections reveal that prominent Shaykh al-Islām sometimes issued divergent rulings on identical matters or modified their legal positions over time. This judicial evolution indicates the adaptability of Ottoman legal thought in response to changing economic and social conditions. This pragmatic approach to commercial jurisprudence demonstrates how Ottoman legal authorities navigated the complex balance between theoretical principles and practical implementation in governing financial transactions throughout this significant period of imperial history.

6. Conclusions

The development of bayʿ al-wafāʾ represents a remarkable case study in Islamic legal dynamism and the capacity of Hanafi jurisprudence to accommodate economic necessities while preserving religious principles. This study has traced the transformation of what began as a practical economic solution into a legitimized contract form within the Hanafi legal tradition. By examining primary sources across multiple genres of legal literature spanning nearly a millennium, we can observe how Islamic jurisprudence developed sophisticated mechanisms to integrate novel financial practices. The journey of bayʿ al-wafāʾ from its earliest mentions by 10th century scholars to its full integration into mainstream Hanafi legal thought demonstrates how Islamic law responded to socioeconomic realities. Initially viewed with suspicion as a potential circumvention of the prohibition against interest (ribā), bayʿ al-wafāʾ gradually gained legitimacy through its incorporation into the wāqiʿāt literature, which served as a crucial vehicle for introducing practical innovations into the established legal framework. The centuries-long debate among Hanafi jurists regarding the proper classification of bayʿ al-wafāʾ—whether as a sale (bayʿ), pledge (rahn), or hybrid contract—reveals the nuanced interpretive methodology that allowed for legal innovation while maintaining fidelity to foundational principles. This process of legitimization was not straightforward but involved sustained intellectual engagement across generations of scholars who recognized the economic necessity of such financial instruments.

This research not only fills a significant gap in English-language scholarship on Ottoman financial instruments but also enriches our understanding of how specific financial instruments were legitimized within Islamic law by offering broader insights into how religious legal systems evolve to address economic challenges without abandoning their foundational principles. The case of bayʿ al-wafāʾ demonstrates that Hanafi jurisprudence possessed internal mechanisms for legal evolution and adaptation, allowing it to respond to changing economic circumstances while preserving its commitment to core Islamic principles. Moreover, by examining the discursive processes through which bayʿ al-wafāʾ gained legitimacy, this study contributes to broader scholarly conversations about legal pluralism, religious authority, and the relationship between theory and practice in Islamic legal history. It demonstrates variety in Islamic legal interpretations through differing opinions of the Mamlūk and Ottoman scholars regarding the issue.

The theoretical implications of these findings extend far beyond the specific case of bayʿ al-wafāʾ and challenge prevailing assumptions about the rigidity of Islamic legal frameworks. This research contributes to theoretical debates on legal transplantation and adaptation by illustrating that the incorporation of novel practices into established legal systems involves more than simple adoption or rejection. Instead, it reveals a sophisticated process of juridical reframing, where new practices are gradually reconceptualized and fitted within existing doctrinal categories or, in some cases, prompt the creation of new hybrid categories altogether. The transition of bayʿ al-wafāʾ from contested practice to codified contract form in the Mecelle demonstrates how legal consensus emerges not through sudden transformation but through sustained scholarly engagement across geographical regions and textual traditions.

Of particular significance to contemporary legal theory is the insight that religious legal systems can develop internal mechanisms for change that do not require external secularizing influences. The evolution of bayʿ al-wafāʾ counters modernist narratives that portray religious law as inherently static or requiring external reform pressures to evolve. Instead, it showcases how internal juristic discourse can facilitate adaptation while maintaining claims to religious authenticity and continuity. For scholars of comparative law and legal history, this study suggests new methodological approaches to examining legal change within religious traditions. By tracing a single contract form across different geographical contexts, time periods, and textual genres, we gain insights into the complex interplay between theory and practice in the evolution of Islamic jurisprudence. This approach reveals that meaningful legal development occurs not only through formal doctrinal pronouncements but also through the accretion of practical solutions to everyday problems—solutions that may initially operate at the margins of established doctrine before gradually gaining theoretical legitimacy. The transformation of bayʿ al-wafāʾ from contested practice to recognized contract form thus offers not merely historical insight but theoretical frameworks that can inform contemporary approaches to understanding legal change, religious authority, and economic adaptation within normative traditions. These theoretical implications resonate beyond Islamic legal studies and speak to broader scholarly conversations about how legal systems balance continuity and change, principle and pragmatism, in responding to evolving social and economic conditions. The results of this study suggest that modern Islamic financial institutions and researchers should draw inspiration from the historical development of bayʿ al-wafāʾ when designing interest-free financing instruments today. For contemporary Islamic finance, this underscores the potential to innovate within sharīʿa-compliant frameworks by leveraging juristic tools, such as necessity (ḍarūra) and custom (ʿurf), and designing hybrid instruments that mirror the functional adaptability of premodern contracts.