Chapter: The Sale of Real Estate and Fruits

720 - Issue: Abu al-Qasim, may Allah have mercy on him, said: "Whoever sells pollinated palm trees—which is when its spathe has split—then the fruit belongs to the seller, left on the palm trees until the harvest, unless the buyer stipulates it for himself."

The origin of "al-ibar" (pollination) among the people of knowledge is fertilization. Ibn 'Abd al-Barr said: It does not occur until the spathe splits and the fruit appears; therefore, it is used as an expression for the appearance of the fruit due to its necessity. The legal ruling is connected to the appearance rather than the act of fertilization itself, without disagreement among the scholars. It is said: "abartu al-nakhla" (I pollinated the palm tree) with both the lightened and doubled forms, so it is "mu'abbarah" and "ma'bura". From this is the saying of the Prophet (peace be upon him): "The best of wealth is a pollinated palm grove." A "sikkah" is a row of palm trees. I have pollinated the palm tree, I pollinate it, by "abr" and "ibar", and I have pollinated it "ta'bir", and the palm tree became pollinated "ta'abbarat" and "i'tabarat". From this is the saying of the poet:

• Be pollinated, O best of palm offshoots *

Al-Khiraqi interpreted the "mu'abbar" as that whose spathe has split, because the ruling is connected to that, not to the act of pollination itself. Al-Qadi said: [The spathe may split by itself and appear], and the pollinator may split it so it appears. Whichever it is, it is the pollination intended here.

There are three sections in this issue:

First: When the sale occurs on fruit-bearing palm trees, and the fruit was not stipulated [in the contract], and the fruit was pollinated, then it belongs to the seller. If it was not pollinated, it belongs to the buyer. This is the view of Malik, al-Layth, and al-Shafi'i. Ibn Abi Layla said: It belongs to the buyer in both cases, because it is connected to the essence by nature, so it is subordinate to it, like the branches. Abu Hanifa and al-Awza'i said: It belongs to the seller in both cases, because this is a growth that has a limit, so it does not follow its essence in the sale, like crops in the land. Our evidence is the statement of the Prophet (peace be upon him): "Whoever buys palm trees after they are pollinated, their fruit belongs to the one who sold them, unless the buyer stipulates it." It is agreed upon. This is explicit in refuting the view of Ibn Abi Layla and is a proof against Abu Hanifa and al-Awza'i by its implication, because he made pollination a limit for the seller's ownership of the fruit, so what is before it belongs to the buyer; otherwise, it would not be a limit, nor would the mention of pollination be beneficial. Also, because it is a latent growth for which appearance is an end-point, so it is subordinate to its essence before its appearance, and not subordinate to it after its appearance, like the fetus in an animal. As for the branches, they enter into the name of the palm tree, and there is no end-point to their detachment, and the crop is not from the growth of the land, but rather it is merely deposited in it.