Selling What One Does Not Yet Possess, and Profiting From What Is Not in One's Guarantee (Daman)بيع ما ليس عند البائع والربح فيما لم يدخل في ضمانه

There is a scenario that has become widespread nowadays: someone requests a hundred units of a particular commodity; you have only some of it, so you take from him the price of all one hundred, knowing that you do not have the full commodity in your possession, intending to bring him the remainder later, since he has already given you the full price. Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, gives the fatwa that this scenario is permissible. He says it is analogous to salam (a forward-payment sale) — and what is salam? It is advancing the price while deferring delivery of the item purchased. So if the price is advanced while delivery is deferred, this is a deferred salam (salam mu'ajjal); and if the seller then goes and buys the commodity immediately, this becomes an immediate salam (salam hall), since salam is of two types: deferred and immediate. For this reason, Shaykh al-Islam gives the fatwa of permissibility in this scenario, and he — along with his student Ibn al-Qayyim, in Zad al-Ma'ad, in the fifth volume, towards its end — denied that this scenario falls within the Prophet's ﷺ prohibition of selling what one does not possess. Ibn al-Qayyim explained and elaborated on this hadith, confirming that this scenario does not fall under it.

The majority of the scholars, however, prohibit this scenario. They say: sell him the hundred you actually have, and set the remainder aside rather than sell it to him in advance, because you might end up buying the remaining commodity at a higher price than expected, and then come back to the first buyer having already sold it to him — and harm could result from that. They also argue that the Prophet ﷺ said, "Do not sell what you do not own" — and here, how can you sell what you do not own? And the Prophet ﷺ said, "Do not sell what is not with you" — and this is not with you. They cite as evidence the hadith of Hakim ibn Hizam, who said to the Prophet ﷺ that a man comes to him wanting a commodity he does not have — so may he sell it to him and then go and buy it for him? The Prophet ﷺ said, "Do not sell what is not with you" — and this, they say, is evidence for the prohibition of this scenario.

Ibn Taymiyyah, may Allah have mercy on him, responds to this by saying that the point of the prohibition is the [potential] inability to deliver — one may or may not be able to. Ibn Taymiyyah permits the sale on the basis of capacity: that is, capacity to acquire the commodity and capacity to deliver it. If one is capable of taking possession of the commodity from others and bringing it, and capable of delivering it, then this does not fall under the hadith. As for the hadith of Hakim, Ibn Taymiyyah says that Hakim did not know whether he would be able to find the commodity at all. Ibn Taymiyyah's position is strong and clear, but the position of the majority is the more cautious one — so the more cautious course is not to sell in this manner, but rather to say, "I will bring it to you later, and we will settle the matter then."

Related to this question: if a buyer purchases something from a third party and asks that it be delivered to him, and it is destroyed in a warehouse before delivery, who bears the liability? The Messenger of Allah ﷺ forbade profiting from what has not been guaranteed. How so? One may not profit from a quantity of goods that has not entered into one's own liability (daman); it is not permissible to profit from something for which one bears no responsibility. This principle is based on the hadith of 'Amr ibn Shu'ayb, from his father, from his grandfather: the Messenger of Allah ﷺ forbade profiting from what is not guaranteed. So one does not profit from what one does not bear liability for, but only from what is within one's own guarantee — meaning, that were it to be destroyed, one would be the party responsible for it; but whatever one bears no responsibility for, one may not profit from it. If the original seller does bear the guarantee for it himself, that is a separate matter, with its own further considerations.

النص العربي الأصلي