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In Ḥanafī Law Distinction Between Mabī’ and Thaman in terms of Its Effect on Legal Arrangements

When the parts of the Ḥanafī law literature related to the contract of sale are examined, it is seen that a special importance is attributed to the distinction between mabī’ (purchased/sold item) and thaman (purchase/sale price) as a criterion of legitimacy. For this reason, this distinction is associated with almost every issue from the legal existence and validity of the contract of sale to its results. Some of the legal arrangements which are shaped according to the mabī-thaman distinction come into prominence. The first of these is that while the mabī’s being present in the property of the seller at the time of the contract in a manner suitable for delivery is obligation in terms of the legal existence of the contract, there is no such an obligation for thaman. The second is that while the seller's ownership of the thaman becomes definite with the contract, the customer's ownership of the mabī’ becomes definite only with qabḍ (taking possession). The third is that while the legal transaction of the seller on the thaman is legitimate before the qabḍ, the legal transaction of the customer on the mabī’ is not legitimate. These differences are mainly dependent on two reasons. The former is that while the mabī’ is seen as the sharṭ (condition) which the existence of the contract depends on its existence, the thaman is seen as the result of the contract in Ḥanafī law. The latter is the identification of mabī’ with ʿayn and thaman with dayn in terms of their terminological contents.