29.4 Buying Fruits While They Are Still On The Tree - The Islamic Personality | Quran Course

29.4 Buying Fruits While They Are Still On The Tree - The Islamic Personality | Quran Course

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اس باب کا ابھی اردو میں ترجمہ نہیں ہوا - یہ اصل متن (انگریزی) ہے۔

29.4 Buying Fruits While They Are Still On The Tree

از Sheikh Taqīuddīn An-Nabahānī6 منٹ کا مطالعہ26 بار دیکھا گیا

Among the transactions which people became accustomed to transacting with is the guarantee of fruits which are upon their trees like the guarantee of lemons, olives, cucumbers, grapes and palm trees and the like. Among the people are those who guarantee grapes and olives for a year or two or three or more. They till and sow it, nurture it and care for it for each year and eat from its fruit. Among the reasons for this guarantee for more than one year is that the olive for example does not produce well every year; rather it often produces well one year and a little another year. This is because its branches grown in one year and produces in the other. It requires, in order to produce well, to pay attention to tilling, nurturing and trimming. So the one who guarantees it will take it for a certain number of years so that he makes it easy to take care of it and working upon it sufficiently such that it gives good and bountiful fruit. Just as this occurs in olives, it occurs in lemons and other similar trees. Among the people are those who guarantee olives and grapes just as they guarantee the cucumber for one year. So they evaluate its guarantee by evaluating what is upon the tree of fruit irrespective of this produce being a little or a lot, good or bad. The guarantee in its essence is buying the fruit while it is on the tree without buying the tree, or buying the produce of the tree for two or three or more years. As for the guarantee of the tree for two or three or more years, it is buying non-existent produce since they do not exist yet. The buying of the non-existent (thing) is not permitted and it is from the category of the sale of risk (gharar). The sale of risk is haram due to what Muslim narrated from Abu Hurairah who said

All these ahadith are explicit in prohibiting the sale of produce before ripening. The impermissibility of the sale of produce before its goodness appears is deduced from the stated text of the ahadith. The permissibility of the sale of produce once their ripeness appears is deduced by its understanding (mafhum). Accordingly the guarantee of the tree whose produce appears like olives, lemons, palm-tree and others is permitted if edibility appears and it is not permitted if the maturity does not appear.

The appearance of goodness of the produce being its maturity is understood from the ahadith which came about that. From scrutinising the ahadith which came in prohibiting the sale of produce before their ripeness appears, we find that they came with several translations. In the hadith of Jabir it came “until its ripeness appears” and it came “until it becomes good.” And in the hadith of Anas “prohibited the sale of grapes until they blacken, and the sale of grain until it becomes hard” (narrated by Abu Dawud). And in the other hadith of Jabir “until it ripens” and in the hadith of ibn Abbas “until it matures.” Accordingly all the ahadith are combinedupon one meaning which is, until maturity appears. Looking into the reality of the fruit we will see that the appearance of maturity therein differs with the difference of produce. Some of them mature by the visible change of colour so it appears in them what indicate the ripening like dates, figs, grapes, pears and the like. From them are those in which ripeness appears by its changing or by its sight by the inspectors like the water-melon due to the difficulty of realising the change of its colour in ripening. Also from them are those for which maturity becomes clear by the beginning of the change of the flower to produce like the cucumber and the like. Hence the meaning of the appearance of its goodness in each fruit is the appearance of its goodness for eating. This is indicated by the hadith of ibn Abbas in which he said:

Just as this is indicated in the hadith agreed upon in the narration of Jabir “until it becomes good.” Herein is clarified the permissibility of the sale of the produce of cucumber and the like i.e. the permissibility of guarantying the cucumber upon the mere appearance of its beginning to show its produce i.e. upon the mere beginning of the flower changing the blossom to its cucumber so the produce is bought while it blossoms and before it becomes visible i.e. the fruit is bought in this situation before it exists by merely something beginning being produced of it. This is not from the category of buying something non-existent because its fruit comes in succession one after another without interruption and does not exist at one time since there is no difference between the goodness of the produce beginning with its redness like dates or blackness like grapes, or by changing its colour like pears, or between its goodness beginning by the appearance of some and the succession of blossoming of other and their producing fruit. Except that this is not permitted in the produce whose beginning of changing of its blossom into produce is not considered like water-melons, so it is not permitted to sell the almond when it is white or to sell the fig while it is unripe before there appears ripeness therein. The meaning is selling it while it is on the tree i.e. the guarantee of the tree because selling produce while on the tree is restricted to its goodness appearing i.e. by appearing what indicates the beginning of the produce ripening.

It is not meant by the appearing of the goodness of the produce the beginning of goodness of each fruit as this is impossible since the produce can ripen a seed at a time or seeds at a time then they succeed one another. Nor is it meant by the appearance of goodness in each garden equally or the appearance of goodness in all gardens. Rather the meaning of appearance of goodness is the beginning of goodness of the species of produce where types do not differ in ripeness like the olive, or the goodness appearing in its type where its types differ in ripeness like the figs and grapes. For example, if there appears goodness in some of the produce of the palm-tree in the garden, it is permitted to sell all the produce of the palm-trees in all gardens. If the goodness appears in a type of apple in some trees, it is permitted to sell this type of apple in all gardens. If the goodness appears in the olives in the trees of the garden, then it is allowed to guarantee all olives in all gardens because the hadith states:

So it is deduced from the clear statement of the hadith that whoever buys palm-trees upon where there are pollinated produce, the produce is not included in the sale but rather remains the seller’s property. And it is deduced from its understanding (mafhum) that if they are not then they are included in the sale and are for the buyer. The meaning of the understanding is the opposite understanding (mafhum mukhalafa) which is the understanding of the condition. It is inevitable to adopt this understanding because if the rule of the non-pollinated is the rule of the pollinated then its restriction with the condition is useless speech without any benefit therein. Hence the produce of the palm-tree before follows the palm-tree, and afterwards it does not follow it. However, it is not allowed to sell it until its goodness appears. This is specific to the palm-tree and nothing else is analogised upon it because the pollination is a specific action. The word, even though it is a description, however it is not an understood description for the reason of the rule: so it does not include reasoning. Thus it is not analogised upon due to the absence of the reason, nor is anything joined to it because there is nothing branching from it nor is it something to be analogised upon. Hence the pollination is specific to the palm-tree and it is not in anything else. The palm-tree does not bear it if it is not pollinated. The pollination is fissuration and fertilization and its meaning is to split the blossom of the female palm-tree to reveal therein the blossom of the male palm-tree. It is not said herein that the rule is related to the appearance of produce so that remaining produce is analogised upon that and they are annexed, with the argument that the objective is not the presence of pollination but rather what results thereof which is the appearance of produce. This is not said because the reality in the palm-tree is that the pollination occurs then after the passing of about a month the appearance of produce occurs. If the palm-trees are bought after fecundation, even after one day for example, the contract is valid even if the produce has not appeared. Thus the rule is related to pollination not the appearance of produce so there is no place for analogy due to the absence of the unifying matter. Therefore it is specific to the palm-tree so it is not analogised upon nor is it annexed to.

As for the rule of the remaining trees, it is taken from the understanding of the impermissibility of selling produce before their goodness appears, and the permissibility after their goodness appears. The impermissibility of selling produce before their goodness appears is based upon the meaning that, at that point, the produce follows the tree and it is not isolated from it, so it follows it. The follower is included in the sale together with what it follows even if it is not mentioned in the contract. Accordingly, in other than the palm-tree among all trees, the produce is included in the sale of the tree and follows it if its goodness has not appeared. However, if its goodness appears then it is not included except by mentioning it due to the coming of ahadith indicating the permissibility of selling the produce after its goodness appears which means that it does not follow; so it is not included except by mentioning it. At this point it is allowed to sell it alone or tree only. However if the tree is bought then a wind comes and uproots it or breaks it i.e. if some misfortune happens, there is nothing upon the seller since the sale is completed. Nor has any text come for the reduction of anything from the buyer in this situation. Contrary to the produce if it is sold upon the tree then a misfortune strikes it i.e. blight, then it is obliged upon the seller to reduce the price of the produce of what struck it from the blight. This is due to what ibn Majah narrated from Jabir that the Messenger of Allah (saw) said: