the increase in the value of the item sold between the time of the sale contract and the buyer’s seeing it belongs to the buyer. According to the first view, however, the increase belongs to the seller, because the sale was not valid.
A fetus in the womb and milk in the udder may not be sold separately; nor may musk in its musk pod, date stones within dates, wool on an animal’s back, or radishes and the like before they are uprooted.
His statement, “A fetus in the womb and milk in the udder may not be sold separately”: A fetus in the womb may not validly be sold when sold separately, because the Prophet—peace and blessings be upon him—forbade sales involving excessive uncertainty (1). This is such a sale, for the fetus may be one or more; it may be male or female; and it may emerge alive or dead. The uncertainty involved is therefore considerable.
Hence, we say that it falls under the general prohibition, namely that the Messenger of Allah—peace and blessings be upon him—forbade sales involving excessive uncertainty. There is also a specific prohibition concerning it: “The Prophet—peace and blessings be upon him—forbade purchasing what is in the wombs of livestock until they give birth” (2). He also forbade the sale of ḥabal al-ḥabalah (3).
(1) Its source has previously been cited on p. 143.
(2) As in the hadith of Abu Said al-Khudri, who said: “The Messenger of Allah, peace be upon him, prohibited the purchase of what is in the wombs of livestock until they give birth; what is in their udders except by measured quantity; an absconding slave; war spoils before they are distributed; charitable dues before they are received; and the outcome of a diver’s plunge.” Reported by Ahmad, 3:42; and Ibn Majah, Book of Trade, chapter: Prohibition of Purchasing What Is in the Wombs of Livestock, no. 2196. Al-Hafiz graded it weak in Bulugh al-Maram, no. 821.
It is also narrated in the hadith of Abu Hurayrah, may Allah be pleased with him, that the Prophet, peace be upon him, prohibited the sale of madamin (offspring still in the loins of male animals) and malaqih. Reported by al-Bazzar, no. 1267, in Kashf al-Astar; al-Hafiz graded it weak in Bulugh al-Maram, no. 824. It was also reported by al-Bazzar, no. 1268, in Kashf al-Astar; al-Tabarani in al-Kabir, no. 11581, from Ibn Abbas, may Allah be pleased with them both; and Abd al-Razzaq, no. 14138, from Ibn Umar, may Allah be pleased with them both. Ibn al-Qayyim graded the hadith authentic in al-Hady, 5:819. Malaqih is the plural of malquh, meaning the fetus of a she-camel, as stated by Ibn al-Athir, 4:263.
(3) Reported by al-Bukhari, Book of Sales, chapter: Sales Involving Gharar (excessive uncertainty) and Habal al-Habalah (the unborn offspring of an unborn animal), no. 2143; and Muslim, Book of Sales, chapter: The Prohibition of Selling Habal al-Habalah, no. 1514, from Ibn Umar, may Allah be pleased with them both.