al-Mundhir. Abu Hanifa said: Selling them is not permissible because the Prophet, peace and blessings of Allah be upon him, forbade the sale of muzabana, and muzabana is the sale of fruit [on the tree] for dates. This is agreed upon (2). Furthermore, he is selling fresh dates for dried dates without measuring one of them, so it is not permissible, just as if it were [lying] on the ground or if it exceeded five awsuq. Our evidence is what Abu Hurayra narrated, that the Prophet, peace and blessings of Allah be upon him, granted a concession for 'araya [to be sold] in [quantities of] five awsuq or less than five awsuq. This is agreed upon (3). It was also narrated by Zayd ibn Thabit, Sahl ibn Abi Hathma, and others, and the Imams of Hadith recorded it in their books. Their hadith contains the phrasing: "Except for 'araya," which is also in the agreed-upon versions (4). This is an addition that must be accepted. Furthermore, if the contradiction between the two hadiths were assumed, our hadith must be given precedence due to its specificity, thereby combining the two hadiths and acting upon both texts. Ibn al-Mundhir said: The one who forbade muzabana is the same one who granted the concession for 'araya, and obedience to the Messenger of Allah, peace and blessings of Allah be upon him, is more appropriate. Analogy (qiyas) is not to be resorted to when a text (nass) exists, especially since the hadith states that he granted a concession in 'araya, and a concession (rukhsa) is the making lawful of a forbidden matter while the cause of the prohibition exists. Thus, if the presence of the cause were to prevent the making lawful, we would have no concession whatsoever.
(1) Omitted from the original manuscript. (2) Narrated by al-Bukhari in: Chapter on selling raisins for raisins and food for food, Chapter on the sale of muzabana, and Chapter on selling crops for food by weight/measure, from the Book of Sales; and in: Chapter on a man who has a path or water right in a walled garden or palm grove, from the Book of Water Rights. Sahih al-Bukhari 3/96, 98, 102, 151. And by Muslim in: Chapter on the prohibition of selling fresh dates for dried dates except in 'araya, from the Book of Sales. Sahih Muslim 3/1169, 1171. It was also narrated by al-Nasa'i in: Chapter on selling fruit for dates, Chapter on selling vineyards for raisins, Chapter on selling 'araya for fresh dates, and Chapter on selling crops for food, from the Book of Sales. Al-Mujtaba 7/234, 236, 237. And by Ibn Majah in: Chapter on Muzabana and Muhaqala, from the Book of Trade. Sunan Ibn Majah 2/761, 762. And by Imam Ahmad in: Al-Musnad 2/5, 7, 16, 63, 64, 108, 123, 392, 3/6, 8, 60, 464. (3) Narrated by al-Bukhari in: Chapter on selling fruit on palm trees for gold and silver, from the Book of Sales. Sahih al-Bukhari 3/99. And by Muslim in: Chapter on the prohibition of selling fresh dates for dried dates except in 'araya, from the Book of Sales. Sahih Muslim 3/1171. It was also narrated by Abu Dawud in: Chapter on the quantity of 'ariyya, from the Book of Sales. Sunan Abi Dawud 2/226. And by al-Nasa'i in: Chapter on selling 'araya for fresh dates, from the Book of Sales. Al-Mujtaba 7/235. And by Imam Ahmad in: Al-Musnad 2/237. (4) As narrated by al-Bukhari in: Chapter on a man who has a path..., from the Book of Sharecropping. Sahih al-Bukhari 3/151. And by Muslim in: Chapter on the prohibition of selling fresh dates for dried dates except in 'araya, from the Book of Sales. Sahih Muslim 3/1171. (5) In manuscript M: "If".
