and the same applies to cloth, timber and similar items, whether the whole item is purchased at such-and-such a price per cubit, on condition that it measures such-and-such a number of cubits, or by purchasing a specified number of cubits of it. In all the cases we have mentioned, goods sold by weight or count follow the same rules as goods sold by measure.
Section
Uncertainty concerning the price and the goods sold, or either of them, takes three forms.
(First) Lack of knowledge of their qualities or quantity. Lack of knowledge of their qualities includes selling an unborn animal in its mother’s womb, selling an absent item without a description, or selling goods for a specified sum in dinars without describing those dinars when different types of coin circulate locally, and similar cases. Lack of knowledge of quantity includes selling food using an unknown measure, or selling goods for an uncounted lot of dinars or dirhams.
(Second) Inability to deliver. Examples include selling a runaway slave, a straying camel, or goods held by a usurper who denies having usurped them and against whom there is no evidence; or who acknowledges the usurpation but refuses to hand them over and is beyond the reach of judicial enforcement. There is disagreement, however, where the usurper denies the usurpation but is subject to judicial enforcement and there is evidence against him. Similar cases include purchasing a debt owed by someone who is present but denies it, when there is evidence against him, and purchasing something subject to a dispute. The least objectionable case is purchasing a debt owed by someone who is absent but only two or three days’ journey away, when it is not known whether he acknowledges or denies the debt, but there is evidence against him. If there is no evidence against him, however, this is not permissible.
(Third) Uncertainty as to the eventual outcome—a matter concerning which there is disagreement. Examples include selling a slave with a wound exposing the bone before he has recovered and compensation for the injury has been awarded, without releasing the assailant from liability for the injury; selling a sick slave whose illness has reached the stage at which a sick person is no longer permitted to dispose of his entire estate; or purchasing the materials of a structure still standing, on condition that it be dismantled and removed from land belonging to neither the seller nor the buyer, and similar cases. A comparable case is where one man is owed dinars, dirhams or merchandise by another, and a third party makes a settlement with the creditor, undertaking to give him something different from what is owed, in such a way that the debtor is left with a choice between two kinds of payment.