What is the ruling on a sale when the owner is present but silent?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The transaction is ruled as if the owner was unaware of the sale. This opinion is held by the majority of scholars, including Abu Hanifa, Abu Thawr, and Al-Shafi'i. The evidence for this position is that silence is ambiguous and therefore does not constitute consent, analogous to the silence of a previously married woman (thayyib) in such a situation. The silence is not necessarily an affirmation of the transaction.
Supporting text
Ibn Abi Layla held that the silence of the owner constitutes affirmation because it is an indication of consent, similar to the silence of a virgin (bikr) in consenting to marriage, due to the shyness that prevents speech in her case, a factor not present here.