Is a sale binding when an unspecified item is sold by measure or weight from a specified bulk quantity?
Chapter on the Option of the Two Parties in Sale
Al-Mughni
Book of Sales
Primary text
The prevailing opinion is that the sale becomes binding upon separation (Tafarruq) between the parties, irrespective of whether they have taken possession (Qabd) or not. This ruling follows the view attributed to al-Kharqi. Evidence for the necessity of the sale being established upon separation is derived from the statement of the Prophet, peace be upon him: "And if they separated after they traded, and neither one of them renounced the sale, then the sale is established." Furthermore, if one of two measured units perished before possession, the contract is void only for the perished item, not the remainder, and the seller has no option to retract, which implies the sale is binding upon the seller prior to possession.
Supporting text
The opinion of Al-Qadi states that the sale does not become binding except through physical possession (Qabd), similar to items sold by measure or weight. This view is supported by the implication that if the item is not fully owned by the buyer, the contract should remain voidable, as the item remains under the seller's guarantee until possession.