Question
Zaid sold a business to Amar including whatever he owed someone and whatever anyone owed him. He said that Amar should pay the debts and whoever was owing the shop, Amar should take it. Is this permissible? Who is entitled to pay and receive the debts?
Answer
With regards to the condition that Amar is required to pay all the debts that are being owed by the business and that he is entitled to receive all the amounts that are being owed to the business, the Shar’i ruling is that by making such a condition the business debts will not be carried over to Amar and at the same time, Amar will not be entitled to receive the outstanding amounts that are being owed to the Business. Zaid (and not Amar) will be required to settle the outstanding debts being owed by the business just as Zaid himself will be entitled to receive the amounts that were being owed to the business. To make such conditions when selling a business etc. is not permissible.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.
References
و بطل بيع ما ليس بمال…(الدر المختار)
وكذلك اذا باع عبده من انسان على ان يضمنه المشترى عنه الفا لغريم له كان البيع فاسدا كذا فى الذخيرة
(هنديه ٣/١٣٥)
وان كان الشرط شرطالم يعرف ورود الشرع بجوازه فى صورة وهو ليس بمتعارف ان كان لاحد المتعاقدين فيه منفعة اوكان للمعقود عليه منفعة والمعقود عليه من اهل ان يستحق حقا على الغيرفالعقد فاسد كذا فى الذخيرة
(هنديه ٤ ٣/١٣)