729 - Issue: He said: "If one sells an orchard (ha'it) and excludes from it a sa' (a measure), it is not permissible. If he excludes from it a specific palm tree or a specific tree, it is permissible."

The discussion regarding this issue involves two sections: The first is that if one sells the fruit of an orchard and excludes a sa', or several a's (sa's), or a mudd, or several mudds, or sells a heap (subra) and excludes from it the like thereof, it is not permissible. This has been narrated on the authority of Sa'id ibn al-Musayyib, al-Hasan, al-Shafi'i, al-Awza'i, Ishaq, Abu Thawr, and the People of Opinion (Ashab al-Ra'y). Abu al-Khattab said: There is another narration that it is permissible, which is the position of Ibn Sirin, Salim ibn Abdullah, and Malik; because the Prophet (may Allah bless him and grant him peace) forbade the sale of thunya (exclusion) unless it is known. This was narrated by al-Tirmidhi, who said: "It is a hasan sahih hadith." This is a known exclusion, and because he excluded something known, it is similar to when one excludes a part (juz') from it. Our evidence is that the Prophet (may Allah bless him and grant him peace) forbade thunya. It was narrated by al-Bukhari. Furthermore, the sold item is known through observation, not by quantity, and the exclusion alters the ruling of observation because one does not know how much remains under the status of observation, therefore it is not permissible. This differs from a part (juz'), for that does not alter the ruling of observation nor does it prevent knowledge of it.

Section: If one sells a tree or a palm tree and excludes a known amount in ratls (pounds), the ruling therein is the same as if one sold an orchard and excluded a quantity of a's. The judge (al-Qadi) said in his "Sharh": "It is valid; because the Companions, may Allah be pleased with them, permitted the exclusion of the scraps (sawaqit) of a sheep." The correct view is what we have mentioned.