whatever grows upon it follows it and thus belongs to him. The views, then, are three.

His statement, “The one who takes it becomes its owner”: the pronoun refers to the water collected in the well and to whatever pasture and thornbushes grow on his land. Thus, if a man enters another person’s orchard, cuts the grass, and cuts down the trees, they become his property because he has taken possession of them.

If the owner of the land says, “Why did you trespass upon my land and take it?”

we say to him: He was wrong in trespassing, but he acquired ownership of it by taking possession of it. Hence he said, “The one who takes it becomes its owner.”

That it be capable of delivery: thus, the sale of a runaway slave, an escaped animal, a bird in the air, fish in water, or something usurped by someone other than the usurper or one able to retrieve it, is not valid.

His statement, “That it be capable of delivery”: this is the fifth condition. The pronoun in his statement, “be,” refers to the subject matter of the contract, whether the price or the item sold. That is, it is stipulated that the item sold or the price must be capable of delivery; in other words, it must be possible to deliver it. Thus, both the seller and the buyer must be able to receive or deliver that which has passed from his ownership or into his ownership. The evidence for this condition is as follows:

First: Allah’s saying:

“Believers! Intoxicants, gambling, idolatrous altars, and divining arrows are all abominations of Satan’s handiwork. So shun them.” [al-Ma'idah 5:90]

Selling something that cannot be delivered is a form of gambling. The reason is that something which cannot be delivered will be sold for less than its true price, because the buyer is taking a risk: he may obtain it, or he may not. Thus, if it is assumed that this undeliverable item would be worth one hundred if its delivery were possible, then, when delivery is not possible, it will be sold for fifty. The buyer is then left either gaining