Is it permissible to dispose of a consideration transferred via a contract that is voided by the destruction of the object before taking possession?
Chapter on Selling Assets and Fruits
Al-Mughni
Book of Sales
Primary text
Disposition of any consideration owned through a contract that is voided by the destruction of the object before physical possession is not permissible. This applies to the rent, the consideration of a settlement (sulh), if they are measured by volume, weight, or count. However, if the contract is not voided by the destruction of the object, disposition before taking possession is allowed. This applies to the consideration for Khul' (redemption from marriage), manumission for a price, the consideration for settlement concerning intentional homicide or bodily injury compensation, and the value of destroyed property. This ruling is based on the principle that the general permissibility of disposition is established by ownership, which has been achieved. This is the view of Abu Hanifa. Similarly, the dower (Mahr) is treated this way according to Al-Qadi and Abu Hanifa, because the contract is not voided by its destruction.
Supporting text
If the matter suggests a risk of voidance upon destruction of the contracted object, entering into another contract based on it is forbidden as a precaution against uncertainty (gharar). Where such uncertainty is absent, the impediment is removed, making the subsequent contract valid. Al-Shafi'i holds that disposition before taking possession is not allowed in cases where disposition is generally permitted before possession.