it; because it is his property, so he has the right to move it. [He is not obligated] (41) to level the pits. This was mentioned by the Qadi, because the lender (42) consented to that when he lent it to him, knowing that he had the right to remove his plants. It is also possible that he is obligated to level the pits because the removal is by his own choice; for if (43) he were to refrain from it, he would not be compelled to do so, thus he is obligated to level the land (44), just as if he had damaged his own land that he did not borrow. If he refuses to remove them, and the lender offers him the amount of depreciation caused by the removal, or the value of his plants and building while standing, for the lender to take them, the borrower shall be compelled to do so; because this is a retraction of the loan without harm. If the borrower says: "I will pay the value of the land so that it becomes mine," he may not do so; because the plants are secondary and the land is fundamental, and this is why plants and buildings follow the land in a sale, but the land does not follow them. The Shafi'i held the same view in all these aspects. Abu Hanifa and Malik said: He requires the borrower to remove them without compensation, unless he lent it for a specified period and then retracted (45) it before it had expired; because the lender did not deceive him, so it was his duty to remove them, just as if he had stipulated that upon him. Our argument is that he built and planted with the permission of the lender, without the condition of removal, so he is not obligated to remove them without compensation, just as if he had demanded it before the time had expired. Their statement that "he did not deceive him" is rejected; for plants and buildings are intended for permanence, and the specification of a period is understood to apply to its commencement, as if he said to him (46): "Do not plant after this period." If the lender refuses to pay the value and the depreciation, and the borrower (47) refuses to remove them and pay the rent (48), they shall not be removed; because the loan implies utilization without compensation, and permission for what is meant to remain permanently and whose removal causes harm is considered consent to its remaining. The statement of the Prophet - peace and blessings of Allah be upon him -: "There is no right for a wrongful root (to remain)," indicates by its implication that a root that is not wrongful has a right. Therefore, if they agree upon a sale,
(41) In (M): "wa-yulzimuhu" (and it is obligated upon him). (42) In the original and (M): "al-musta'ir" (the borrower). (43) In (A): "li-annahu" (because it is). (44) In (M): "al-hafr" (the digging/pit). (45) In the original, (A), and (B): "fa-yarji'" (then he retracts). (46) Omitted from: (A). (47) In the original: "al-muflis" (the bankrupt). And the word is omitted from: (M). (48) In (M): "al-ujra" (the rent).
