Otherwise, if a cow, a sheep, or something similar escapes and cannot be recovered, it falls under this ruling.

His statement, “or a bird in the air”: for example, a person may own pigeons that are not presently in their place, and their owner sells them. Such a sale is invalid, because they cannot be delivered. The apparent meaning of the author’s words is that their sale is invalid even if they are accustomed to returning—such as when it is their habit to come back at night and roost in their place—for although they may be accustomed to returning, they may be shot or perish, since they are not presently under our control.

It has been said that if they are accustomed to returning, the sale is valid. If they return, then all is well; otherwise, the buyer has the right to rescind the sale. This view is more correct.

Thus, if they return and the seller wishes not to hand them over to the buyer, we compel him to deliver them, because the sale was validly concluded. But if they do not return, the buyer has the right to rescind, because he did not purchase something from which he derives no benefit and which does not come into his possession.

His statement, “or fish in water”: that is, the sale of fish in water is likewise invalid, even if the fish can be seen.

The apparent meaning of the author’s words is that this applies even if the fish can be seen in a place from which they can be caught, since he stated without qualification, “fish in water.” However, the correct view, which he adopted in al-Rawḍ (1), is that if the fish can be seen and can readily be caught, their sale is permissible, such as fish found in the pools of some gardens. But fish in the sea or a river may not be sold, or in a place that is neither a sea nor a river;