The Meaning of Legal Possession

Question:

If a person buys food from another person on credit, is it permissible for him to sell it before taking possession of it? What is the legal possession regarding which the hadith prohibits selling before it is achieved? And if he buys goods from him, whether food or otherwise, and counts them while they are in the merchant’s shop, is this considered legal possession? Some students of knowledge have issued a ruling permitting this, so does this have a legal basis or not? Many people have come to engage in this practice, and the goods may be sold several times while still in the first merchant’s shop, especially if it is sugar or rice. Please give us a ruling—may you be rewarded—and clarify this, may Allah reward you.

Answer:

If a person buys food or another commodity from another person for a cash price or a deferred price, it is not permissible for him to sell it before he takes possession of it; this is done by taking it into his home, his shop, or elsewhere, and merely counting it and leaving it in its place without taking it into his possession is not sufficient for possession. Among the evidence for this is what is established in the two Sahihs and others from the Prophet (peace and blessings be upon him): , and in another wording: .
And the hadith of Abdullah ibn Umar (may Allah be pleased with them both) in Muslim: .
And his hadith in the two Sahihs and others, in which he said: .
And his hadith in them as well, in which he said: , and his hadith in Sunan Abu Dawud, al-Daraqutni, al-Mustadrak, and Sahih Ibn Hibban, in which he said: "I bought oil in the market, and when I had taken it, a man met me and offered me a good profit for it, so I wanted to sell it to him, but a man behind me grabbed my arm, and I turned around and saw it was Zayd ibn Thabit. He said: Do not sell it where you bought it until you take it to your home; for the Messenger of Allah (peace and blessings be upon him) prohibited selling goods where they are bought until the merchants take them to their homes."
The hadith contains Muhammad ibn Ishaq in its chain. Ibn al-Qayyim, after mentioning the hadith and using it as evidence for generalizing the ruling to food and other things, said: "Even if it contains Muhammad ibn Ishaq, he is a trustworthy and truthful narrator." End of quote.
And al-Hafiz al-Mundhiri said about him in al-Targhib wa al-Tarhib: "He is one of the renowned imams, and his hadith is hasan (good)." And al-Hafiz said in al-Fath: "What Muhammad ibn Ishaq narrates uniquely, even if it does not reach the level of sahih (authentic), is at the level of hasan if he explicitly states the transmission. Only those who do not distinguish between sahih and hasan, and consider everything suitable as evidence to be sahih, declare it sahih. This is the method of Ibn Hibban and those mentioned with him." End of quote.
And Shams al-Haqq al-Azimi Abadi said in his commentary on Sunan al-Daraqutni: "The hadith was narrated by Abu Dawud with a chain in which Ibn Ishaq explicitly stated the transmission, and by Ibn Hibban in his Sahih, and by al-Hakim in al-Mustadrak, who authenticated it. And he said in al-Tanqih: Its chain is good, for Ibn Ishaq explicitly stated the transmission." End of quote.
I say: Shaykh Shams al-Haqq’s statement that Ibn Ishaq explicitly stated the hearing in Abu Dawud’s narration is questionable. I reviewed the Sunan and did not find him explicitly stating the hearing. Perhaps that occurred in Shaykh Shams al-Haqq’s copy. However, Imam Ahmad narrated it in al-Musnad via Ibn Ishaq in a shortened form, and he explicitly stated the hearing. So the hadith is good and explicit on the subject.
In any case, goods—whatever they may be—cannot be sold before they are taken into possession. Similarly, the hadith of Hakim ibn Hizam in al-Bayhaqi with a good chain indicates the generality of the ruling. I said: "O Messenger of Allah, I engage in these sales, so what is lawful for me and what is forbidden?" He said: .
And what indicates that the ruling is general for food and other things is the hadith of Ibn Abbas (may Allah be pleased with them both) in the two Sahihs and others, in which the Prophet (peace and blessings be upon him) said: . Ibn Abbas said: "I do not think there is anything except that it is like it."
Al-Khattabi in Ma'alim al-Sunan and Ibn al-Mundhir, as attributed to him by Ibn al-Qayyim in Tahdhib al-Sunan, reported the consensus on the impermissibility of selling food before taking possession of it.
As for things other than food, al-Khattabi and likewise Ibn al-Qayyim reported four opinions from the scholars regarding it.
Ibn al-Qayyim preferred the opinion that generalizes the ruling of prohibition to food and other things, based on the hadiths of Hakim ibn Hizam and Zayd ibn Thabit which indicate this. He said: "The prohibition is attributed to the incompleteness of control and the non-severance of the seller’s connection to it; for he may hope to cancel the sale and refuse to hand it over if he sees that the buyer has made a profit on it, and the profit may entice him, and his eye may narrow regarding it, and it may lead to deception in canceling the sale even if it is unjust, and to litigation and enmity, and reality bears witness to this."
"So among the beauties of the complete and wise Shari'ah is: preventing the buyer from disposing of it until he has fully taken control of it..." to the end of his words (may Allah have mercy on him).
And what those who distinguish between food and other things rely on, namely that the explicit prohibition came in food in most of the hadiths, does not imply restricting the ruling to it. Rather, that, along with what was reported regarding the generalization of the ruling, falls under the well-known rule, which is: that establishing a ruling for some of the individuals of a general term does not imply restricting it to them. And Allah knows best.
And this is supported, as the scholar Ibn al-Qayyim (may Allah have mercy on him) said, by the fact that if the prohibition came in food despite the intense need for it, then its prohibition in things other than food is even more so.
As for if the food or other item is sold by measure or weight, then its possession is achieved by measuring or weighing it; for Muslim narrated in his Sahih from Abu Hurayrah (may Allah be pleased with him) that the Prophet (peace and blessings be upon him) said: . End of quote.
And the item sold by weight is in the same meaning as the item sold by measure, but the more cautious and complete course is that the buyer should not dispose of what he bought by measure or weight until he moves it to his home; due to the generality of the many authentic hadiths narrated in the two Sahihs and others, which include the Prophet’s (peace and blessings be upon him) prohibition of selling food until it is taken into possession.
And there is no doubt that complete possession is only achieved by moving and taking into possession, not merely by measuring and weighing.
And Allah knows best, and may Allah send prayers and peace upon our Prophet Muhammad, his family, and his companions.