The harm inherent in uncertainty is less serious than that of usury. A concession is therefore granted for such uncertainty when it is required by need, since prohibiting it would cause greater harm than the uncertainty itself. Examples include selling an entire piece of real estate even though the interiors of its walls and foundations are unknown, and selling a pregnant or lactating animal even though the extent of its pregnancy or the amount of its milk is unknown. This is so even though the Prophet prohibited selling unborn offspring separately; according to most scholars, the same applies to milk. Likewise, the sale of fruit after it has begun to ripen is valid, and the purchaser is entitled to leave it on the trees, as established by the sunnah. This is the position of the majority, including Mālik, al-Shāfiī, and Ahmad, even though the parts through which the ripening will be completed have not yet come into existence.

The Prophet (peace and blessings be upon him) also permitted the purchaser, when buying date palms that had already been pollinated, to stipulate that their fruit be included. He would thereby be purchasing fruit before it had begun to ripen, but only as part of the sale of the trees themselves.

It is thus clear that a slight degree of uncertainty may be permitted when included incidentally and subordinately, though it would not be permissible on its own.

When people needed to exchange fresh dates on designated palms for dried dates, the Prophet granted a concession permitting such sales on the basis of an estimate. He did not permit an exchange known to be unequal; rather, for the small quantity necessitated by need, he allowed equality to be determined by estimation. This quantity is either the zakat threshold of five wasqs—units of dry measure—or less than that threshold, according to the two positions of al-Shāfiī and Ahmad, although the well-known position reported from Ahmad is that it must be below the threshold.

Once this is established, Mālik’s foundational principles governing sales are better than those of others,