The Ruling on the Sale by an Unauthorized Agent: A Comparative Jurisprudential Study under Omani Law

Abstract

This study explores the legal ruling on the unauthorized sale of property—where an individual, without ownership, authorization, legal mandate, or agency, sells property belonging to someone else. It addresses a central issue in Islamic financial transactions by presenting the views of the five major Islamic schools of thought: Ibadhi, Hanafi, Maliki, Shafi'i, and Hanbali. The paper analyzes the supporting evidence used by each school, including sources from the Quran, the Sunnah, and rational argumentation. Each opinion is examined individually, leading to a reasoned preference for the view that such a sale is valid if later ratified by the rightful owner.

The study further compares the concept of unauthorized transactions in Islamic jurisprudence with the legal principle of management of affairs without mandate and the provisions concerning the sale of another’s property under Omani civil law. The research is structured into an introduction, a preliminary discussion, two main sections, and a conclusion summarizing the key findings and recommendations.

Employing descriptive, analytical, and comparative methodologies, the study finds that an unauthorized sale refers to a person selling property they do not own, without permission, representation, or authority. Islamic jurists differ in their rulings:

1- The majority—including the Ibadhi, Hanafi, Maliki, and early Shafi'i scholars—consider such a sale suspended pending the owner's approval.

2- The minority—represented by the later Shafi'i view and the dominant Hanbali opinion—regard the sale as void and not subject to ratification.

Omani civil law addresses the management of affairs without mandate in Articles 207 to 214 of the Civil Transactions Law, while Article 441 specifically addresses the unauthorized sale of another's property. The Omani legal stance largely aligns with the majority view in Islamic jurisprudence, considering such sales conditional upon the owner's approval, though it differs in terminology. Furthermore, the Omani Penal Code penalizes any person who knowingly disposes of movable or immovable property not legally theirs, particularly when such actions cause harm to others.

The study concludes by recommending that Omani legislators revise Article 207 to broaden the concept of management of affairs without mandate, removing limitations related to urgency or necessity. It also proposes repealing Article 441 and incorporating its provisions under the general rules governing unauthorized interventions.