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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 149

Translation · EN

it. Ibn al-Mundhir said: The scholars have reached a consensus on the validity of the totality of this Hadith. The second category is that he sells them on the condition of immediate cutting, which is valid by consensus, because the prohibition was only due to the fear of the fruit perishing and damage occurring to it before it is taken, as evidenced by what Anas narrated: that the Prophet—peace and blessings of Allah be upon him—forbade the sale of fruits until they appear [to be reaching maturity] (2). He said: "What do you think if Allah prevents the fruit [from ripening]? Upon what basis would one of you take his brother's wealth?" Narrated by al-Bukhari (3). This is secure in the case of what is cut, so its sale is valid, just as if its suitability had appeared. The third category is that he sells them unconditionally, without stipulating cutting or leaving [on the tree], so the sale is void. This is also the view of Malik and al-Shafi'i. Abu Hanifa permitted it, because an absolute contract implies cutting, so it is as if he had stipulated it. He said: The meaning of the prohibition is to sell it [as] ripe before it has actually ripened, as indicated by his saying: "What do you think if Allah prevents the fruit? Upon what basis would one of you take his brother's wealth?" The word "prevention" (man') indicates that the contract addresses a meaning which is currently missing, until the prevention can be conceived. As for our position, the Prophet—peace and blessings of Allah be upon him—gave an absolute prohibition against the sale of fruit before its suitability appears, so the subject of the dispute falls under it. Their reasoning based on the context of the Hadith actually points (4) to the invalidation of the principle they established, namely that an absolute contract implies cutting, and it reinforces our argument that an absolute contract implies leaving [the fruit on the tree]. Thus, the absolute contract becomes like the one in which leaving it is stipulated.

Notes

= It was also narrated by Abu Dawud, in: The Chapter on the Sale of Fruits Before Their Suitability Appears, from the Book of Sales. Sunan Abi Dawud 2/227. And Ibn Majah, in: The Chapter on the Prohibition of Selling Fruits Before Their Suitability Appears, from the Book of Trade. Sunan Ibn Majah 2/746. And Imam Ahmad, in: 2/7, 62, 123. (2) In the original manuscript: "tuzha" (appear/ripen). (3) In: The Chapter: If One Sells Fruits Before Their Suitability Appears..., from the Book of Sales. Sahih al-Bukhari 3/101. It was also narrated by Muslim, in: The Chapter on Calamities (Jawa'ih), from the Book of Sharecropping (Musaqah). Sahih Muslim 3/1190. And al-Nasa'i, in: The Chapter on Buying Fruits Before Their Suitability Appears..., from the Book of Sales. Al-Mujtaba 7/232. And Imam Malik, in: The Chapter on the Prohibition of Selling Fruits Until Their Suitability Appears, from the Book of Sales. Al-Muwatta 2/618. (4) In [M]: "yudam". (5) Omitted from the original manuscript. (6) In the original manuscript: "muqtada".

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