Explanation of the Book of Sales-14
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The Shaykh :"And from Ibn Mas'ud (may Allah be pleased with him), he said: The Messenger of Allah (peace and blessings be upon him) said: Bulugh al-Maram 7:52 Ahmad narrated it, and he indicated that the correct view is that it is mawquf (a report stopping at a Companion)":
And that is the case; it appears that it is mawquf (a report stopping at a Companion):Bulugh al-Maram 7:52, and the reason given for this is that it is gharar (excessive uncertainty in a contract). Fish live in the water, as is well known. So if you say, "I will sell you the fish in this part of the river," that is not permissible. The Prophet (peace and blessings be upon him) explained that this is because it is gharar (excessive uncertainty in a contract). Gharar (excessive uncertainty in a contract) is ignorance (jahalah), and contracts that contain ignorance must lead to dispute between the contracting parties, which results in enmity, hatred, and resentment. Islam came to combat what causes this, or what leads to it. However, the reason or explanation in this athar (a report from a Companion or successor): For example, if the fish are in a place where knowledge encompasses them, such as a narrow place with clear water where the fish can be seen and controlled so that they do not escape to the sea or the wide river, then selling this fish is permissible. Similarly, if they are in a pond enclosed by its sides, and they can be seen because the water is clear, then there is no harm in it. Why? "Because the ruling revolves with its cause, in its existence and its absence". So if the cause is gharar (excessive uncertainty in a contract) and the gharar (excessive uncertainty in a contract) is removed, then the sale is valid.
Now, this is like what came before, like the previous hadith; all of it revolves around ignorance and gharar (excessive uncertainty in a contract). Any contract that contains ignorance and gharar (excessive uncertainty in a contract) that leads to dispute is not permissible.
Now, our statement that ignorance and gharar (excessive uncertainty in a contract) lead to dispute, and dispute leads to enmity and hatred: Have you seen if the contract does not lead to dispute, enmity, and hatred, such as a gift? For example, if a person gives a runaway slave as a gift, is it valid?
The answer: The correct view is that it is valid, and that giving an unknown item as a gift is permissible. This is because the recipient is either a gainer or a person who is safe (unharmed), unlike contracts of exchange, where ignorance implies that one is either a gainer or a debtor. There is a great difference between the two.
Now, giving a slave who is a runaway as a gift: we said that it is permissible and valid, because the recipient, if he catches him, is a gainer, and if he does not catch him, he is safe (unharmed).
Now, giving war spoils before the division, likewise.
Giving fish in the water, even if they are unknown, is valid. This is due to the principle we mentioned, which is: "That the contract here revolves only between gain and safety", not between gain and loss. And if it revolves between gain and safety, then no dispute will arise in it. For example, if a slave is given as a gift and he is a runaway, and the recipient is unable to obtain him, will he come to the giver to dispute with him and demand it?
The student: No.
The Shaykh : Never. If he came to him, he would be told: You have no right. A man gave you his slave as a gift, and he was a runaway, and you were unable to catch him. You come and say: Give it to me? He is not obligated to do so. Now.
Do not buy the fish that is in the water, for it involves uncertainty (risk).
لا تشتروا السمك في الماء ; فإنه غررAnd that is the case; it appears that it is mawquf (a report stopping at a Companion):
Do not buy the fish that is in the water
لا تشتروا السمك في الماءFor it is gharar (excessive uncertainty in a contract)
فإنه غررNow, this is like what came before, like the previous hadith; all of it revolves around ignorance and gharar (excessive uncertainty in a contract). Any contract that contains ignorance and gharar (excessive uncertainty in a contract) that leads to dispute is not permissible.
Now, our statement that ignorance and gharar (excessive uncertainty in a contract) lead to dispute, and dispute leads to enmity and hatred: Have you seen if the contract does not lead to dispute, enmity, and hatred, such as a gift? For example, if a person gives a runaway slave as a gift, is it valid?
The answer: The correct view is that it is valid, and that giving an unknown item as a gift is permissible. This is because the recipient is either a gainer or a person who is safe (unharmed), unlike contracts of exchange, where ignorance implies that one is either a gainer or a debtor. There is a great difference between the two.
Now, giving a slave who is a runaway as a gift: we said that it is permissible and valid, because the recipient, if he catches him, is a gainer, and if he does not catch him, he is safe (unharmed).
Now, giving war spoils before the division, likewise.
Giving fish in the water, even if they are unknown, is valid. This is due to the principle we mentioned, which is: "That the contract here revolves only between gain and safety", not between gain and loss. And if it revolves between gain and safety, then no dispute will arise in it. For example, if a slave is given as a gift and he is a runaway, and the recipient is unable to obtain him, will he come to the giver to dispute with him and demand it?
The student: No.
The Shaykh : Never. If he came to him, he would be told: You have no right. A man gave you his slave as a gift, and he was a runaway, and you were unable to catch him. You come and say: Give it to me? He is not obligated to do so. Now.