Is the selling of properties (rubu') and renting out of houses in Mecca permissible?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The selling of properties in Mecca and the renting of its houses are prohibited. This view is held by Abu Hanifa, Malik, Al-Thawri, and Abu Ubaid. Ishaq disliked it, based on the narration from Amr ibn Shu'ayb, from his father, from his grandfather, stating that the Messenger of Allah (peace be upon him) said concerning Mecca: "Its properties shall not be sold, nor shall its houses be rented." Another narration from Mujahid states that the Prophet (peace be upon him) said: "Mecca is sacred; the selling of its properties is forbidden, and the renting of its houses is forbidden." The justification for prohibition is that Mecca was conquered by force (anwatan) and not divided (as spoils of war), thus remaining under the custody of the community (mawquf), preventing its sale, similar to other lands conquered by Muslims but not divided. Evidence for its conquest by force includes the Prophet's statement: "Allah held back the Elephant from Mecca and gave authority over it to His Messenger and the believers, and it was not lawful for anyone before me, nor will it be lawful for anyone after me, except for an hour of a day." Furthermore, the Prophet (peace be upon him) granted amnesty to those who remained in their dwellings, stating: "Whoever enters the house of Abu Sufyan is safe, and whoever closes his door upon himself is safe," confirming the retention of their property rights upon conquest.
Supporting text
The second narration permits the selling of its properties and the renting of its houses. This view is attributed to Tawus and Amr ibn Dinar, and it is the opinion of Al-Shafi'i and Ibn al-Mundhir. The evidence supporting permissibility is the Prophet's statement when asked where they should stay next: "Did Uqayl leave us any property?" implying that Uqayl had sold properties inherited from Abu Talib, which would only be possible if ownership was established. Additionally, companions such as Abu Bakr, Al-Zubayr, Hakim ibn Hizam, and Abu Sufyan possessed houses in Mecca, with some selling them and others leaving them to their descendants. Hakim ibn Hizam sold Dar al-Nadwa, and Mu'awiya purchased two houses, while Umar purchased the prison house from Safwan ibn Umayyah for four thousand. The continuous actions of the people of Mecca in dealing with their properties through sale and other means, without any rejection from the scholars, implies consensus (ijma'). Omar, despite his strictness, only acquired the prison house through purchase.