The earlier scholars said: “It is not permissible under any circumstances.” This is both the import of Ahmad’s words and his explicitly reported position. Ahmad’s prohibition concerned precisely the customary practice of the people, for melons, snake cucumbers, and cucumbers are not customarily sold separately from their plants. Moreover, the precedent upon which they based their analogy is itself impermissible according to him. His explicit position, as reported by al-Athram and Ibrāhīm ibn al-Hārith concerning a tree bearing fruit whose ripeness has not yet become apparent, is that if the tree itself is the principal object of the purchase, the sale is valid. If, however, the fruit is what the purchaser actually seeks and he buys the tree along with it as a stratagem, the sale is invalid. Likewise, if someone purchases land containing crops or fruit-bearing trees whose fruit has not yet ripened, then if the land is the object sought, the fruit and crops may be included incidentally. But if the fruit and crops are the actual object sought and he purchases the land for their sake, the sale is invalid. Since this is his position regarding fruit on trees, it is evident that the produce is the sole object sought from cucumber and melon patches, not the plants themselves, which have only a slight value in comparison with the produce.

Ibn Aqīl and others derived two positions concerning such concealed crops:

The first is that produce concealed underground may be sold, based on one of the two reports from Ahmad concerning the sale of an item one has not seen. There is no doubt that this plainly follows, for such a sale is prohibited only according to our position that the sale of an unseen item is invalid. Once we hold the sale of absent goods to be valid, these crops fall within that category.

The second is that they may be sold without restriction, as in Mālik’s school, by analogy with the kernel of a walnut. This position accords with the principles of Ahmad and others for two reasons:

The first is that experienced persons can infer the true condition of these buried crops by examining their leaves, and can ascertain it more reliably than they can ascertain a slave’s condition by seeing his face. In every matter, recourse is to competent and trustworthy experts in it, and they attest