However, Imam al-Khattabi said: the prohibition concerns selling a specific item, not selling by description alone; do you not see that he permitted salam (the forward sale), which is a sale of something the seller does not yet possess?
The editor comments: Many students of the sacred sciences err here, equating the sale of concrete goods with the sale of an item described in liability, and that is incorrect. The point of attachment in the two cases differs: when the item is specified, the contract fastens to the very object sold, whereas when it is only described, the obligation rests in the seller’s dhimmah (liability).
Hence Sharh al-Iqnaʿ states: A sale based on description is valid and is of two kinds.
- The sale of a designated item, such as one’s saying, “I have sold you my Turkish slave,” followed by a mention of its qualities. If that slave perishes before the buyer takes possession, the contract is annulled because its subject has disappeared.
- The sale of an undesignated item that is merely described, as when one says, “I have sold you a Turkish slave,” and then details the required traits. Should the seller deliver a slave that does not meet the description and the buyer returns it, the contract is not voided, for the agreement was not tied to that particular slave—unlike the first type.
Shaykh ʿAbd al-Rahman al-Saʿdi said: Whoever prohibits the sale of an item described in liability and cites the hadith “lā tabiʿ mā laysa ʿindaka” (“Do not sell what you do not have”) has misapplied the evidence. The hadith forbids selling a specific item that lies outside one’s ownership; as for an item merely described and resting in liability, I do not see it included in this hadith, and this is the position of all our scholars.
- Resolution of the Fiqh Academy concerning qabd (taking possession):
In the Name of Allah, the Most Compassionate, the Most Merciful.
Praise belongs to Allah, Lord of all worlds, and blessings and peace be upon our master Muhammad, the Seal of the Prophets, and upon his family and Companions.
The Council of the Islamic Fiqh Academy, convened at its sixth session in Jeddah, Kingdom of Saudi Arabia, from 17 to 23 Shaʿban 1410 AH, corresponding to 14 –