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Whoever sells date palms whose fruit spathes have split open, the fruit belongs to the seller, who may leave it in place until the harvest, unless the buyer stipulates otherwise. The same applies to grapevines, mulberry trees, pomegranate trees, and others.

His statement: “Whoever sells date palms whose fruit spathes have split open, the fruit belongs to the seller, who may leave it in place until the harvest, unless the buyer stipulates otherwise.” This concerns the sale of date palms, not the sale of land. Thus, if he sells date palms—that is, the palm trees themselves—whose fruit spathes have split open, meaning that they have opened, this is because when the palm first produces its fruit, it is covered by the spathe, which in our colloquial speech is called kāfūr. Then, when this fruit cluster develops, its covering splits and opens.

So, if he sells date palms whose fruit spathes have split open, the fruit belongs to the seller unless the buyer stipulates that it is to belong to him. If the spathes have not split open, however, the fruit belongs to the buyer, because it follows the palm tree. The evidence is the Prophet’s ﷺ statement: “Whoever sells date palms after they have been pollinated, their fruit belongs to the one who sold them, unless the buyer stipulates otherwise.” (1)

Let us consider whether the evidence corresponds to the ruling derived from it. The answer is: no, because the author, may Allah have mercy on him, made the ruling dependent on the splitting open of the spathe, whether or not the seller has pollinated it.

Pollination is fertilization: something is taken from the spathe of the male palm and placed in the spathe of the date palm. When this is done, the fruit becomes sound; but if it is not done, it spoils. Hence, when the Prophet ﷺ arrived in Madinah, he found them pollinating the palms. The farmer would climb the male palm, take a fruit cluster from it, and place some of it upon the fruit of the date palm. He would climb up and come down, then climb up and come down again, with all the exertion involved. So he ﷺ said: “I do not think this accomplishes anything.” When the Messenger of Allah ﷺ made this statement,