756 - Issue; He said: (And [not] of the bird before it is hunted)

The summary of this is that if one sells a bird in the air, it is not valid, whether it is owned or unowned. As for the owned [bird], it is because it is not under [his] control. As for the unowned [bird], its sale is not permissible for two reasons: one of them is the inability to deliver it, and the second is that it is not owned by him. The basis for this is the Prophet's (may God bless him and grant him peace) prohibition of the sale of gharar (uncertainty). It is said in its interpretation: It is the sale of a bird in the air and fish in the water. We are not aware of any disagreement regarding this. There is no difference between the bird being accustomed to returning or not being accustomed to it; because he is unable to deliver it now, and he is only able to do so once it returns. If it is said: Then the absent [item] in a distant place is also not possible to deliver immediately! We say: One can bring the absent [item], while the owner of the bird cannot force it to return unless it returns on its own, and the owner does not have total control over its return, thus he is incapable of delivering it due to his inability over the means by which its delivery is achieved, unlike the absent item. If he sells the bird in a tower (burj), you must look: If the tower is open, it is not permissible, because if the bird is capable of flight, it cannot be delivered. If it is closed and it is possible to catch it, its sale is permissible. The Qadi said: If it is not possible to catch it except with effort and difficulty, it is not permitted to sell it due to the lack of ability to deliver it. This is the school of al-Shafi'i. However, this is invalidated by [the case of] the distant item which cannot be brought except with effort and difficulty. They distinguished between them by stating that for the distant item, the cost required to bring it is known through custom, and the duration of delaying delivery is known, which is not the case for capturing a bird. The correct view, if God Almighty wills, is that the variance of time in bringing the distant item and the difference in difficulty is greater than the variance and difference in capturing a bird from the tower, and custom applies to this just as it does to that. Thus, if it is valid for the distant item despite the large variance and intensity of difference in difficulty, then this is more appropriate.

757 - Issue; He said: (And [not] of the fish in the marshes (ajam))

This is the view of most scholars. It is narrated from Ibn Mas'ud that he forbade it, saying: "It is gharar." Al-Hasan, al-Nakha'i, Malik, Abu Hanifa, al-Shafi'i, Abu Yusuf, and Abu Thawr also disliked it. We know of no one who disagrees with them, due to the hadith we mentioned. The meaning is that it is not permitted to sell it in water unless three conditions are met: first, that it be owned; second, that the water be clear, such that it does not prevent its observation and identification; third, that it be possible to hunt and capture it. If these conditions are met, its sale is permitted because it is an owned, known item that is capable of being delivered, so its sale is permissible, like [an item] placed in a bowl. If any of the conditions we mentioned are lacking, its sale is not permitted for that reason. If all three are lacking, its sale is not permitted due to three causes. If two of them are lacking, it is not permitted to sell it due to two causes. It is narrated from Umar ibn Abd al-Aziz and Ibn Abi Layla regarding one who has a marsh where he traps fish that its sale is permissible because he is able to deliver it in outward appearance, resembling things that require expense in their measurement, weighing, and transport. Our evidence is what was narrated from Ibn Umar and Ibn Mas'ud that they said: "Do not buy fish in the water, for it is gharar." This is because the Prophet (may God bless him and grant him peace) forbade the sale of gharar, and this is part of it. Furthermore, he is unable to deliver it except after hunting it.