The Sale of Food Before Taking Possession

Section One: Goods for Which Taking Possession Is a Condition

As for selling food before the buyer has taken possession of it, the scholars are unanimously agreed that it is forbidden, save for a solitary report attributed to ʿUthmān al-Battī. Their consensus rests on the established prohibition transmitted from the Messenger of Allah—peace and blessings be upon him—in the narration of Mālik from Nāfiʿ from ʿAbd Allāh ibn ʿUmar, in which the Prophet—peace and blessings be upon him—said:

“Whoever purchases food must not resell it until he has taken possession of it.”

Within this topic the jurists differ on three points:

1. Which types of goods require actual possession before they may be resold;
2. Which proprietary interests must be possessed before sale and which need not be;
3. The distinction between food sold by measure and food sold in bulk.

These matters will be discussed in three subsections.

Subsection One: Goods for Which Possession Is a Precondition

With regard to selling anything other than food before taking possession, there is no disagreement in Mālik’s school that it is permissible. As for foodstuffs that fall under the rulings of ribā, his school is likewise unanimous that taking possession is a necessary condition for their sale. Concerning food that is not subject to ribā, two reports are narrated from Mālik. The more widely known—the view also adopted by Aḥmad and Abū Thawr, who additionally stipulate that the item be measurable or weighable—prohibits such a sale. The other report permits it.

Abū Ḥanīfah maintains that possession is required in every sale except those involving immovable goods that are not transferred, such as houses and real estate. Al-Shāfiʿī, for his part, considers possession a condition for every sale whatsoever; this is also the view of al-Thawrī and is reported from Jābir ibn ʿAbd Allāh and Ibn ʿAbbās.

Abū ʿUbayd and Isḥāq state that whatever is neither measured nor weighed may be sold before possession is taken; accordingly, they require possession only for commodities sold by measure or weight. Ibn Ḥabīb, ʿAbd al-ʿAzīz ibn Abī Salama, and Rabīʿa concur, though they add items sold by count to those sold by measure or weight.

From all this, seven opinions emerge regarding the requirement of possession:

1. It is required only for foodstuffs subject to ribā;
2. It is required for all foodstuffs without exception;
3. It is required for food sold by measure or by weight;
4. It is required for every movable item;
5. It is required for absolutely everything.