The 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,