for the buyer had not acquired the right to leave it on the tree. In their view, the contract necessarily requires immediate taking of possession in every case. This is the consistent application of an analogy whose basis and weakness we shall discuss, even though human welfare cannot be sustained on that basis. Moreover, I know of no explicit Sunnah from the Prophet—peace and blessings be upon him—establishing that when an item sold perishes before the buyer is able to take possession, the loss is borne by the seller and the contract is annulled by its destruction, other than this hadith concerning crop disasters.

Even if there had been no Sunnah on this matter, [straightforward] analogical reasoning would accord with it. This is what the Prophet—peace and blessings be upon him—drew attention to when he said: “On what basis would any of you take his brother’s wealth without right?” The buyer of fruit can only harvest it once it has fully developed and ripened, not when the contract is concluded, just as a lessee can enjoy the leased benefit only gradually. Thus, the fruit’s destruction before the buyer is able [to harvest it is like the destruction of leased property before the lessee is able] to enjoy its benefit. In the case of a lease, the loss is borne by the lessor by consensus; the same therefore applies to a sale.

Abū Hanīfa distinguishes between the two on the grounds that the lessee has not acquired ownership of the benefit, whereas the buyer has not acquired the right to leave the fruit on the tree. Al-Shāfiī does not accept this distinction, and we shall discuss its basis.

Since the Prophet—peace and blessings be upon him—prohibited selling fruit until signs of its ripeness appeared—and in one wording narrated by Muslim from Ibn Umar, he said: The Messenger of Allah—peace and blessings be upon him—said, “Do not sell fruit to one another until signs of its ripeness appear and the danger of blight has passed”; and in another wording narrated by Muslim from him: “He prohibited selling the fruit of date palms until it began to color, and ears of grain until they turned white and were safe from blight. He prohibited both the seller and the buyer”; and in the Sunan of Abū Dāwūd, Abū Hurayra—may Allah be pleased with him—said: “The Messenger of Allah—peace and blessings be upon him—prohibited selling the fruit of date palms until it was safe from every hazard”;