The following is a translation from the Arabic book ‘Mashroo’ Qaanoon Al-Buyoo’ Fee Dawlah Al-Islaamiyah’, first edition by Ziyaad Ghazlaan.
The following is stipulated in regards to the Ma’qood ‘Alaihi (the trade or that which is being contracted over) within the sales contract:
1) That it is Mubaah (permissible) according to the Shar’a.
2) That it is owned (i.e. the property) of the Baa’i (seller).
3) That it is within the possession (Maqbood) of the seller.
4) That it is Ma’loom Al-Aaqibah (its result/outcome is known).
As for it being Mubaah then this is due to his (saw) statement: “Verily when Allah has made something Haraam then he has made its price Haraam” (Its Isnaad was verified as Saheeh by Ash-Sheikh Al-Albaani in ‘Ghaayatu-l-Maraam’).
This Hadeeth has come in the Mutlaq form (without restriction) in regards to the Tahreem (prohibition) of trading (selling) that which is Muharram (prohibited) and there is nothing that has come to restrict it. As such it remains upon its absolute form (Mutlaq) and this is supported by that which came from Ibn ‘Abbaas (ra) when he said: “I saw the Messenger of Allah (saw) sitting at the pillar and he (Ibn ‘Abbaas) said: Then he raised his sight to the sky and laughed saying: Allah has cursed the Yahood (Jews) three times, verily Allah made the fats Haraam for them so they sold them and ate their price. And verily Allah when he has made the eating of something Haraam upon a people then he has made its price Haraam for them” (Saheeh Abu Daawood).
As for it being owned by the seller then it has come from the Messenger of Allah (saw) that he said “There is no trade (selling) except for that which is owned” (Saheeh Abu Daawood).
And also due to what came from him (saw): “It is not Halaal to sell that which does not belong to you and no profit for that which is not guaranteed” (Saheeh Ibn Maajah) and the Messenger of Allah (saw) said: “It is not for a man to sell that which he does not own” (Saheeh An-Nasaa’i).
So the Ahaadeeth are clear in their Dalaalah (indicated meaning) in regards to the selling of an item before owning it. As for the Tahreem (prohibition) of selling it before possessing it (in hand) then the Hadeeth of Hakeem Bin Hizaam (ra) relates to this: “I said: O Messenger of Allah, I buy tradable items so what is Halaal for me in regards to this and what is Haraam? He (saw) said: If you have bought something to trade then do not sell it until you have taken possession of it” (Al-Imaam Ahmad in his Musnad and Ash-Sheikh Al-Arnaa’oot said it is Saheeh li Ghairihi).
It was related about Ibn ‘Abbaas (ra) that he said: “The Messenger of Allah (saw) said: Whoever has bought food then he does not sell it until he has possession of it. And Ibn ‘Abbaas (ra) said: And everything should be regarded according to the position of food” (Extracted by Muslim).
So his (saw) statement: “Then don’t sell it until you have possession of it” establishes the Tahreem (prohibition) because Hakeem asked about the Halaal and the Haraam in trade. So it was a question of a trader who practised trade, in relation to the Halaal and Haraam in regards to his selling and buying, so the Messenger of Allah (saw) informed him of the prohibition (Hurmah) of selling the good before taking possession of it.
That which reinforces this is his (saw)’s statement: “The Salaf (advance) and trade is not Halaal, nor two trades together, nor profit in that which is not assured, nor selling that which you do not have” (Saheeh At-Tirmidhi). The meaning of ‘Ribh ma La Yudman’ (profit in that which is not assured/guaranteed) came in the Mawsoo’ah Al-Fiqhiyyah (Encyclopaedia of Fiqh) as: [The meaning of ‘Ribh ma La Yudman’ refers to the selling before taking possession like if he was to buy a good and sell it to somebody else before taking possession of it from the one who sold it to him. So this trade is Baatil (invalid)] and its profit is not permitted because the trade (sale) is under the guarantee of the first seller and not in the hand of the buyer due to him not (yet) taking possession of it] (Al-Mawsoo’ah Al-Kuwaiti, chapter of Bai’ (trade) 83/9).
The Qabd (taking possession) is the removal of barriers (preventions) in front of the buyer to be handed over the trade and the exiting of the good from the seller’s authority (control). In regards to the goods that are not movable then it is sufficient to remove the barriers in front of the buyer so that the trade can be handed over. This applies to land, houses, factories and their like.
As for the goods that are movable then two conditions are stipulated together so that the Qabd (seizure/possession) is realised and these are the removal of the Mawaani’ (barriers) and moving it from the control of the buyer. Al-Bukhaari extracted a Hadeeth related by Ibn ‘Umar (ra) who said: “We used to buy food from riders in piles then the Messenger of Allah (saw) forbade us to sell it until we had moved it from its place”.
However if the consequences (results) of the trade are Ma’loom (known) then the Hadeeth from Ibn ‘Abbaas (ra) applies: “The Messenger of Allah (saw) forbade the Bai’ (trade) of Gharar” (Saheeh Abu Daawood). Al-Jarjaani explained the reality of Al-Gharar as: [That which its ‘Aaqibah (consequences/results) are unknown, he doesn’t know if it will be or not, or the sold item in which there is a danger to his expenses due to the perishing of the sold item] (At-Ta’reefaat 69).
We infer from the reality of al-Gharar that it is a financial transaction in which there is a possibility/probability (Ihtimaal) that one party will make gains at the expense of the other party. As such with the mere existence of this possibility in relation to the sale, it makes the trade one of Gharar. So selling fish in water leads makes it possible from this trade that the purchaser will obtain a fish and as such the buyer will gain the fish and the seller will gain the price of the fish. However there is the real possibility that he does not obtain a fish and as a result the seller will gain the price whilst in return the purchaser will lose out for that which he paid to obtain the fish. So in this possible outcome the seller makes profit over what the buyer has lost and the reason for all of this is that the sale was made in a contract in which the outcome was unknown. An-Nawawi said: “As for the Gharar trade then it is a major basis from the basis of financial transaction and for this reason Muslim moved it ahead (gave it prominence) and many issues (Masaa’il) relate to it and they are not few in number, like the Bai’u-l-Ibq (runaway sale), Bai’u-l-Ma’doom (Zero sale) and the Majhool (unknown), that which cannot be delivered, that which the ownership of the seller has not been completed for, the sale of fish in a lot of water, milk still in the udder, that which is still in the womb, the selling of some heaps of things…, the sale of a piece of clothing from amongst many clothes and sheep from amongst the sheep. And the sale of all of these is Baatil (invalid)] (Sharh Muslim 156/10).