Selling an undivided asset or another's property

Selling what one does not own (the fuduli)

The fuduli sells or buys the property of another without authorization. Two doctrines: the Hanafis hold his acts suspended on the owner's ratification, since they come from a competent person over the property of another: the owner ratifies or refuses while the object remains and the parties are present; the buyer cannot dispose of the good before ratification, and the owner's taking of the price counts as ratification.

The Malikis hold the sale valid and binding on the seller's side, suspended on the owner's approval: the fuduli becomes like an agent, and the produce of the good goes to the buyer, except when the buyer did not know the seller was overstepping, in which case the produce returns to the owner. The Companions' practice carried benevolent overstepping: the Prophet gave Urwa al-Bariqi a dinar to buy a sheep; he came back with 2, sold one for a dinar, and the Prophet invoked blessing on his trade (al-Bukhari 3642).

The sale of usurped property

The usurped good remains the owner's; the schools define when its sale stands: the Hanafis allow it only when the owner ratifies the sale or takes it upon himself, and without evidence the sale dissolves if the good perishes before delivery; the Malikis restrict it to the owner selling to the usurper himself, provided the usurper is resolved to return the good; the Shafi'is allow the owner to sell it before recovering it when he is able to recover and deliver it, the sale to a capable buyer being valid (soundest view), with an option for the ignorant buyer if extraction fails; the Hanbalis forbid the sale, allowing only the sale to the usurper or to one clearly able to take it from him, with an option if the belief in his ability fails.

Selling over another's sale

Offering a better deal to break another's pending sale is forbidden: "let none of you sell over the sale of his brother" (al-Bukhari 2042, Muslim 1413). Malik explains it by the seller leaning to the first buyer; the Hanafis describe offering an identical good cheaper; the Shafi'is, pressing the buyer during his option; the Hanbalis, offering the same good cheaper. If the seller permits the second offer, the prohibition is lifted.

Practical note on selling undivided or another's assets

Three reflexes protect the buyer: check the seller's ownership or mandate, beware of goods under dispute, and never build a deal on breaking another person's transaction.