What is the ruling when an agent buys or sells using the principal's specific identifiable funds without authorization?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
There are two scholarly positions regarding an agent buying or selling using the principal's specific identifiable assets ('ayn al-mal) without permission. The second opinion, held by Malik, Ishaq, and Abu Hanifa concerning sales, states that the sale or purchase is valid, contingent upon the owner's ratification. If ratified, it is executed and binding; if not ratified, it is void. The evidence cited is the Hadith of Urwah ibn al-Ja'd al-Bariqi, wherein the Prophet, peace be upon him, blessed the transaction when the agent exceeded his mandate.
Supporting text
The first position, which is the position of Shafi'i, Abu Thawr, and Ibn al-Mundhir, dictates that the sale is void and must be returned. The basis for this is the Hadith of the Prophet, peace be upon him, to Hakim ibn Hizam: 'Do not sell what you do not possess.' This is because the agent sold something he was not able to physically deliver, which resembles selling a bird in the air. Furthermore, the allowance for ambiguity (gharar) in a will does not apply to a sale.