Is the sale of fish in the water valid?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The sale of fish in the water is invalid according to the position of the majority, including Ibn Mas'ud, who considered it *gharar*. Hasan, Nakha'i, Malik, Abu Hanifa, Shafi'i, Abu Yusuf, and Abu Thawr also disliked it, and no contrary opinion is known among them, based on the evidence against *gharar*. The condition for validity, when fish are in the water, requires three cumulative conditions: First, the fish must be owned. Second, the water must be clear, allowing for observation and identification. Third, it must be possible to catch and secure the fish. If these are met, the sale is valid as it becomes a known, possessed item capable of delivery, like fish placed in a basin.
Supporting text
If any of the three conditions are missing, the sale is invalid. There is a narration from 'Umar ibn 'Abd al-'Aziz and Ibn Abi Layla that permits selling fish in a pool (*ajamah*) if the seller can deliver them, considering this similar to items requiring effort only for measuring, weighing, or transporting. However, the evidence from Ibn 'Umar and Ibn Mas'ud stating, 'Do not buy fish in the water, for it is *gharar*,' is preferred, as the inability to deliver without catching is analogous to a bird in the air or a runaway slave.