Muwatta Malik (Qasim)

Takhrij al-Hadith: [واخرجه البخاري 2143، من حديث مالك، و مسلم 1514، من حديث نافع به]
Jurisprudential Explanation:
➊ It is prohibited to sell something that does not exist at all.
➋ As a means of blocking the ways to evil (sadd al-dhara'i), certain matters can be prohibited.
➌ Islam desires that there should always be unity and harmony among Muslims.
➍ One meaning of "habl al-habla" is also that the term of the sale is fixed such that when this (animal) gives birth, then its offspring also gives birth. This term is unknown (majhul), therefore it is prohibited.

Hadith Commentary:
The sale and purchase mentioned in the hadith is a remnant of the Age of Ignorance (Jahiliyyah), and it contains several flaws, such as:

➊ It is not known whether the she-camel is actually pregnant or if her belly is simply swollen, just as women sometimes appear to be pregnant but are not.
➋ If she is pregnant, then whether the offspring will be born or not, whether it will survive and complete the term of pregnancy or not—there are many such possibilities that can lead to disputes. Any sale and purchase that involves uncertainty, where the price is unknown, or the item being sold is ambiguous, or the period of payment is not specified—all such forms of transaction are impermissible.

And Allah knows best.

Hadith Commentary:

Then her child grows up and gives birth to a child, as is explicitly mentioned in another narration.
There was ignorance regarding this period.
Secondly, there was deception, as it is not known when she will give birth.
Then, whether her child remains alive or dies is also uncertain.
If the child remains alive, then for how long will she be pregnant, and when will the delivery take place?
If such a period is stipulated in a salam (forward sale) contract, the salam will not be valid.
Even if, customarily, its time can be estimated.

Hadith Commentary:
(1)
In the era of ignorance (Jahiliyyah), a peculiar form of forward sale (bay‘ salam) was prevalent. When someone learned that a certain person possessed a high-breed she-camel, he would make an agreement with the owner that when the she-camel became pregnant, he would be the buyer of its offspring, and he would pay the price in advance. If the owner said that the offspring had already been sold, the buyer would even be willing to make a deal for the next generation. The Messenger of Allah (sallallahu alayhi wa sallam) forbade this type of transaction because it is the sale of a non-existent and imaginary thing. It is not known what the she-camel will give birth to, whether she will give birth at all or not, or whether she will give birth to a stillborn.

(2)
Imam Bukhari (rahimahullah) has established from this that if the term in a forward sale (bay‘ salam) is unknown, such a transaction is impermissible, even though a she-camel generally gives birth within approximately one year; nevertheless, this term is unknown. There can be a difference of several days, which can lead to disputes, and for this reason, the Messenger of Allah (sallallahu alayhi wa sallam) forbade it. Sometimes, for the payment of the price, neither the month nor the day would be specified; rather, the birth of the she-camel’s offspring would be set as the promise. At times, it would also happen that when the fetus grew and itself gave birth, then the price would be paid, as is clarified in other narrations. There was ignorance regarding this term, and thus it was prohibited. Some discussions related to this hadith have already been mentioned under Kitab al-Buyu‘, Hadith: 2143.

Hadith Commentary:
Before Islam, it was customary among the Arabs to sell the unborn offspring of a pregnant she-camel.
This type of sale was declared a deceptive transaction and was prohibited.
Another interpretation of the above hadith is that, for debts and similar matters, the term would be set as the time when the pregnant she-camel gives birth, and then further extended to when the offspring of that she-camel gives birth. This too was a deceptive transaction, and thus it was also prohibited.

Hadith Commentary:
(1)
A deceptive sale is when, for example, a bird is flying in the air, or a fish is swimming in the river, or a deer is running in the jungle, and it is sold before being captured.
Similarly, selling a runaway slave or slave-girl, whom the seller does not have the ability to hand over to the buyer, is also a deceptive sale.

(3)
Imam Bukhari rahimahullah did not present any explicit hadith regarding deceptive sales, but rather deduced it from the prohibition of "Habl al-Habalah."
It is possible that he was alluding to the hadith which Imam Ahmad narrated with his chain, that the Messenger of Allah sallallahu alayhi wa sallam forbade deceptive sales.
(Musnad Ahmad: 2/114)
Many types of sales are included in deceptive sales.
The sale of non-existent, unknown, and ambiguous items is also included in this.

(3)
There are several reported explanations regarding the interpretation of "Habl al-Habalah," one of which is mentioned in the aforementioned hadith.
Another explanation is that it refers to selling the offspring of the offspring of a she-camel.
According to both explanations, this sale is invalid, because according to the first explanation, the period for payment of the price is unknown, and according to the second explanation, it is the sale of a non-existent item.
Both of these are prohibited.
(Fath al-Bari: 4/451)

Hadith Commentary: Benefits and Issues: A person's coming and going from home to the mosque in the darkness of night and in the intensity of summer heat is recorded, and for these things (heat, darkness, travel), a person receives reward and merit. Therefore, after considering the distance from the mosque, it is not correct to pray at home out of fear of the distance or by making it an excuse. The more hardship one endures for prayer, or the farther one comes from, the greater will be the increase in reward and merit.

Benefits and Issues:
(Habl al-habala) refers to the case of a pregnant animal’s pregnancy. Its form was that when a transaction was made, a long and unknown period would be set for its fulfillment: that when this she-camel gives birth to a female offspring, and then that offspring becomes pregnant, then at that time the payment will be made. Another meaning is also found: that I sell to you the offspring of this pregnant she-camel’s offspring. As will be mentioned in the next narration, this is impermissible. There is deception in it. It is not known whether she will give birth or not, and then whether the one born will be male or female, and it is also unknown when she will become pregnant. In this hadith, there is a refutation and prohibition of this pre-Islamic custom. This is also practiced among some families in Punjab and Sindh. These people, when exchanging marriages (watta satta), and if there is no girl available in exchange, they stipulate the condition that the girl to be born from this couple in the future must be given to them. They refer to this as “giving the womb” or “thanda saak” (giving a relationship to be born in the future).

Urdu Hashiyah (Commentary):

A detailed discussion regarding the meaning of Hadith 4626 has already taken place in its benefits. However, at this point, it is intended to draw attention to an important issue, which is that an unknown or ambiguous period should never be set as the term for repayment of a loan; rather, the period for repayment of a loan must be determined with complete clarity. Nevertheless, if the debtor is unable to repay at the appointed time, he should request additional time. And the creditor should also grant respite until ease is possible, because this is a very virtuous act. The excellence of this can be gauged from this blessed hadith of the Messenger of Allah (sallallahu alayhi wa sallam), in which he said: “Whoever gives a loan to someone, he receives the reward of giving charity equal to his loan every day. And then, if the person is unable to repay the loan at the appointed time and the creditor grants him further respite, then he receives the reward of giving double the amount of his loan in charity every day.” See: (Sahih al-Targhib wa al-Tarhib, al-Sadaqat, Chapter: Encouragement to show leniency to the insolvent and to grant him respite..., Hadith: 907). However, in this situation, the debtor should not take undue advantage of the leniency and become heedless or unconcerned about repaying the loan; rather, he should strive to repay the loan as soon as possible and should continue to sincerely pray for his benefactor, i.e., the creditor.

From the explanation narrated by Abdullah ibn Umar radi Allahu anhu, it is clearly understood that the period of fulfillment is unknown. Furthermore, it is not even known whether the she-camel will give birth to a female or a male. In the case of giving birth to a female offspring, it is then not known whether she will even grow up to maturity or not. If she does grow up, will she become pregnant or not? Then, it is also unknown whether there will be an offspring or not. (The details have already been mentioned in Hadith number 4626.) Therefore, this sale is prohibited.

Benefits and Issues:

➊
The meaning of (بَيْعُ حَبَلِ الْحَبَلَةِ) is that the offspring of an animal is bought and sold before its birth. This is not permissible because it involves uncertainty (gharar). It is not known whether the offspring will be male or female, healthy or defective.

➋
Its second meaning is that something is purchased and the payment deadline is set until an animal gives birth. This is an unknown period, therefore this is also prohibited.

➌
Another meaning is that the offspring born from a certain pregnant animal, when it grows up and gives birth, that animal is what I am selling, or the payment for some other thing will be made at that time. This also involves uncertainty (gharar) and the period is unknown. It is not known whether the offspring from this pregnant animal will be male or female, and if it is female, when it will give birth.

➍
For deferred payment, the period should be clearly specified. Then, if the debtor is unable to pay at that time, he may request additional time. Or, no period should be specified at all, and the debtor may pay according to his convenience. Granting such ease to the debtor is a highly virtuous act; however, the debtor should not become heedless of repayment due to this leniency, but should continue to pray for the creditor and strive to repay as much as possible. He should not be negligent or lax in this matter.

Takhrij:
«أخرجه البخاري، البيوع، باب بيع الغرر وحبل الحبلة، حديث:2143، ومسلم، البيوع، باب تحريم بيع حبل الحبلة، حديث:1514.»©Explanation:
➊ Apparently, from the mentioned hadith, it is understood that the sale of a fetus (janin) is prohibited while it is in its mother’s womb.
And there is also an opinion that it is prohibited to sell the offspring of the animal that is being nurtured in the womb of the female, i.e., the sale of the fetus of a pregnant she-camel.
The reason for this prohibition is that this sale involves both the aspects of non-existence (ma‘dum) and ignorance (majhul).
And there is no ability to acquire it, because in one sense, this is a deceptive sale.
And there is also an opinion that its meaning is: to sell something on the condition that the she-camel gives birth, or that the offspring of this she-camel, after growing up, gives birth.
The reason for the prohibition in this is that it is a sale in which the term is unknown.

➋ The interpretation of the prohibited sale mentioned in the hadith, which is transmitted with the words “wa kana bay‘an...etc.”, was made by Nafi‘ or Ibn ‘Umar (radi Allahu anhuma). From this, it is understood that a term for the payment of the price was fixed, in such a way that when the offspring currently being nurtured in the womb of the she-camel grows up and gives birth, the offspring born from it would be the price for that camel.
This interpretation has been adopted by Imam Malik and Imam Shafi‘i (rahimahum Allah).
They justify the prohibition in this case by stating that the term for the payment of the price is indeterminate; therefore, such a sale is also prohibited.