Explanation of the author's statement: "Therefore, the sale of a runaway slave, a stray camel, a bird in the air, or a fish in the water is not valid, nor is the sale of stolen property by anyone other than the thief or one who is able to take it."
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The Shaykh : The author derived from this his statement: "Therefore, the sale of a runaway slave and a stray camel is not valid". A runaway slave is a slave who has fled from his master, and a stray camel is a camel that has strayed from its owner. The sale of a runaway slave is not valid, whether his whereabouts are known or unknown, because he is not in a state where he can be delivered. The seller cannot deliver him to the buyer, even if we know his whereabouts and that he has fled to such-and-such a town, because finding him is difficult, especially given the weakness of the authority, the lack of security, and the lack of control. It is certainly very difficult for the buyer to obtain him. Good.
His statement: "Therefore, the sale of a runaway slave is not valid" appears to apply whether the buyer is able to return him or not. It has been said that if the buyer is able to return him, the sale is valid, because the ruling is established by its cause and removed when the cause is removed. If this man knows the location of the runaway slave and is able to take him with ease, what prevents the validity of the sale? But this is on the condition that the seller does not deceive him, meaning he does not give him the impression that he is unable to find him. This is because if he informs him that he is able to obtain him, he will raise the price, meaning its cost. If he does not inform him, he will lower the price. Therefore, he must inform him.
"Nor a stray camel". What is a stray camel? It is a camel that has strayed. This is an example; otherwise, if a cow, a sheep, or something similar runs away and cannot be caught, it falls under this category.
"Nor a bird in the air". A bird in the air cannot be sold validly. For example, if a person has pigeons and they are not currently in their place, and their owner sells them, the sale is not valid because they are not in a state where they can be controlled. The apparent meaning of the author's words is that the sale is not valid even if they are accustomed to returning, even if it is the habit of these pigeons to come at night and roost in their place. The sale is not valid because, although they are accustomed to returning, they might be shot or perish, as they are not in our hands now. It has been said that if they are accustomed to returning, the sale is valid; then, if they return, fine, otherwise the buyer has the right to rescind. This opinion is more correct: that the contract is valid. If the bird arrives and the seller wants to say, "No, I will not deliver it to you," we would compel him to deliver it, because the sale took place validly. If it does not arrive, the buyer has the right to rescind, because the buyer did not buy something that is of no benefit and does not return to him.
He said: "Nor a fish in the water", meaning the sale of a fish in the water is not permissible, even if it is visible. The apparent meaning of the author's words is that it is not valid even if it is visible in a place where it can be taken from, because he stated generally: "a fish in the water". However, the correct view, which the commentator followed, is that if it is visible and easy to take, its sale is permissible, like fish that are in ponds, such as in the ponds of some gardens. There may be fish in them, but they are in an enclosed place and are visible and easy to take. The sale of these is valid. But a fish in the sea or in a river cannot be sold validly, or in a place that is neither a sea nor a river but where it is difficult to take; its sale is not valid. This is because this fish might get stuck in the mud and cannot be obtained. Yes.
"Nor stolen property by anyone other than the thief or one who is able to take it". The sale of stolen property by the thief or by the owner is not valid.
The questioner : By the thief.
Another questioner: No.
The Shaykh : By the owner, meaning if the owner of the stolen property sells it to a third party, it is not valid, because he excluded it by saying: "by anyone other than the thief or one who is able to take it". If it is from the thief, for example, if the owner says to the thief, "Buy from me what you have stolen," and he buys it, this is valid because the cause, which is the ability to deliver, meaning the cause of validity, is present, as this stolen property is with him. The sale is valid, but on the condition that he does not prevent him from having it except through the sale. If he prevents him from having it except by selling it to him, the sale is not valid because it is without consent, and consent is a condition of sale. This means if the thief says, "I will not return it to you, and I want you to sell it to me," and the owner sells it to him under compulsion, because he says, as the common people say: "The compensation, not the separation", meaning I take the compensation and my property does not go away, and my property is compensated. If the thief says, "I will not give it to you, but I want you to sell it to me," and gives him the price and sells it to him, the sale is not valid. Good.
If the thief offers a price many times greater than its value and the owner sells it to him, is it valid or not? It is not valid, as long as he has not consented, even if he is given many times its value. This is because the owner might not consent to sell it to the thief, even if he is given many times its value, because he wants to take revenge on him. He knows that if the owner took this amount, he could buy ten of the same kind as what was taken from him, but he wants to prevent the thief from his greed and appetite. He says, "I will never sell it." So we say the sale is not valid, even if it is for many times its value.
The author's statement: "or one who is able to take it". Able to take what?
The questioner : From the thief.
The Shaykh : Able to take it from the thief. For example, if a person steals it, and the owner sells it to the uncle of this person who is able to take it from him, or to his father, it is valid because the cause, meaning the cause of the validity of the sale, which is the ability to take it, is present. Good. If the buyer bought it based on the fact that he was able to take it, but he was unable to do so later, he has the right to rescind, because obtaining his objective became difficult.
So this condition is taken from the Qur'an, the Sunnah, and consideration. From the Qur'an, O 'Abd al-Rahman?[An-Nisa 4:29] What is the indication?
The questioner : ... .
The Shaykh : That if one of them suffered a loss, he would not be pleased with it. And from the Sunnah, yes, 'Adam?
The questioner : ... .
The Shaykh : Yes, and this is excessive uncertainty (gharar), because it may happen or it may not. And from consideration, Jamal?
The questioner : ... .
The Shaykh : That this is a cause of enmity, hatred, contention, and disagreement, because no person wants to suffer a loss. Good. Give an example, yes?
Do you want to ask, or shall we ask?
The questioner : ... .
His statement: "Therefore, the sale of a runaway slave is not valid" appears to apply whether the buyer is able to return him or not. It has been said that if the buyer is able to return him, the sale is valid, because the ruling is established by its cause and removed when the cause is removed. If this man knows the location of the runaway slave and is able to take him with ease, what prevents the validity of the sale? But this is on the condition that the seller does not deceive him, meaning he does not give him the impression that he is unable to find him. This is because if he informs him that he is able to obtain him, he will raise the price, meaning its cost. If he does not inform him, he will lower the price. Therefore, he must inform him.
"Nor a stray camel". What is a stray camel? It is a camel that has strayed. This is an example; otherwise, if a cow, a sheep, or something similar runs away and cannot be caught, it falls under this category.
"Nor a bird in the air". A bird in the air cannot be sold validly. For example, if a person has pigeons and they are not currently in their place, and their owner sells them, the sale is not valid because they are not in a state where they can be controlled. The apparent meaning of the author's words is that the sale is not valid even if they are accustomed to returning, even if it is the habit of these pigeons to come at night and roost in their place. The sale is not valid because, although they are accustomed to returning, they might be shot or perish, as they are not in our hands now. It has been said that if they are accustomed to returning, the sale is valid; then, if they return, fine, otherwise the buyer has the right to rescind. This opinion is more correct: that the contract is valid. If the bird arrives and the seller wants to say, "No, I will not deliver it to you," we would compel him to deliver it, because the sale took place validly. If it does not arrive, the buyer has the right to rescind, because the buyer did not buy something that is of no benefit and does not return to him.
He said: "Nor a fish in the water", meaning the sale of a fish in the water is not permissible, even if it is visible. The apparent meaning of the author's words is that it is not valid even if it is visible in a place where it can be taken from, because he stated generally: "a fish in the water". However, the correct view, which the commentator followed, is that if it is visible and easy to take, its sale is permissible, like fish that are in ponds, such as in the ponds of some gardens. There may be fish in them, but they are in an enclosed place and are visible and easy to take. The sale of these is valid. But a fish in the sea or in a river cannot be sold validly, or in a place that is neither a sea nor a river but where it is difficult to take; its sale is not valid. This is because this fish might get stuck in the mud and cannot be obtained. Yes.
"Nor stolen property by anyone other than the thief or one who is able to take it". The sale of stolen property by the thief or by the owner is not valid.
The questioner : By the thief.
Another questioner: No.
The Shaykh : By the owner, meaning if the owner of the stolen property sells it to a third party, it is not valid, because he excluded it by saying: "by anyone other than the thief or one who is able to take it". If it is from the thief, for example, if the owner says to the thief, "Buy from me what you have stolen," and he buys it, this is valid because the cause, which is the ability to deliver, meaning the cause of validity, is present, as this stolen property is with him. The sale is valid, but on the condition that he does not prevent him from having it except through the sale. If he prevents him from having it except by selling it to him, the sale is not valid because it is without consent, and consent is a condition of sale. This means if the thief says, "I will not return it to you, and I want you to sell it to me," and the owner sells it to him under compulsion, because he says, as the common people say: "The compensation, not the separation", meaning I take the compensation and my property does not go away, and my property is compensated. If the thief says, "I will not give it to you, but I want you to sell it to me," and gives him the price and sells it to him, the sale is not valid. Good.
If the thief offers a price many times greater than its value and the owner sells it to him, is it valid or not? It is not valid, as long as he has not consented, even if he is given many times its value. This is because the owner might not consent to sell it to the thief, even if he is given many times its value, because he wants to take revenge on him. He knows that if the owner took this amount, he could buy ten of the same kind as what was taken from him, but he wants to prevent the thief from his greed and appetite. He says, "I will never sell it." So we say the sale is not valid, even if it is for many times its value.
The author's statement: "or one who is able to take it". Able to take what?
The questioner : From the thief.
The Shaykh : Able to take it from the thief. For example, if a person steals it, and the owner sells it to the uncle of this person who is able to take it from him, or to his father, it is valid because the cause, meaning the cause of the validity of the sale, which is the ability to take it, is present. Good. If the buyer bought it based on the fact that he was able to take it, but he was unable to do so later, he has the right to rescind, because obtaining his objective became difficult.
So this condition is taken from the Qur'an, the Sunnah, and consideration. From the Qur'an, O 'Abd al-Rahman?
O you who have believed, do not consume one another's wealth unjustly but only [in lawful] business by mutual consent
يَا أَيُّهَا الَّذِينَ آمَنُواْ لاَ تَأْكُلُواْ أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ إِلاَّ أَن تَكُونَ تِجَارَةً عَن تَرَاضٍ مِّنْكُمْThe questioner : ... .
The Shaykh : That if one of them suffered a loss, he would not be pleased with it. And from the Sunnah, yes, 'Adam?
The questioner : ... .
The Shaykh : Yes, and this is excessive uncertainty (gharar), because it may happen or it may not. And from consideration, Jamal?
The questioner : ... .
The Shaykh : That this is a cause of enmity, hatred, contention, and disagreement, because no person wants to suffer a loss. Good. Give an example, yes?
Do you want to ask, or shall we ask?
The questioner : ... .