Selling something that is non-existent at the time of the sale

Q: I sell eggs and I keep my stock at my parents’ shop. Once, a staff member from my parents’ shop had taken from my stock which is kept separately and sold it to the customer. It was brought to my attention a while later. As the products were more expensive, I had discounted them when sending the invoice although the goods had already been sold to the customer. Is this permissible?

A: In order for a sale to be valid, it is necessary that the goods be existent at the time of the sale. In this case, since the eggs which they have already sold are non-existent, it is not permissible for you to sell them those eggs. The Shar’ee ruling in this case is that they should compensate you for selling your eggs. The law pertaining to compensation is that if an identical item is found for the commodity they had taken (e.g. eggs), then they should compensate you with the identical item. If the commodity they had taken does not have anything that is identical to it (e.g. a sheep), the value of the commodity taken will have to be given. Hence, in this case, they should compensate you with the same amount of eggs they had taken. If they made any profit on the eggs they sold, the profits will have to be given in charity.

And Allah Ta'ala (الله تعالى) knows best.

(ومن غصب شيئا له مثل كالمكيل والموزون فهلك في يده فعليه مثله) ... (فإن لم يقدر على مثله فعليه قيمته يوم يختصمون) ... (وما لا مثل له فعليه قيمته يوم غصبه) ... (ومن غصب عبدا فاستغله فنقصته الغلة فعليه النقصان) لما بينا (ويتصدق بالغلة) (الهداية 3/372-373)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)