Ibn Aqīl’s position undoubtedly follows by analogy from one of the two positions held by al-Shāfiī’s followers. Moreover, those who prohibit this are left either resorting to a legal stratagem to render it permissible, [or committing] what they believe to be forbidden, [or causing harm] and themselves suffering harm. The Kufans resorted to stratagems to make it permissible: sometimes by leasing only the land and allowing the lessee to take the fruit of the trees—just as they hold concerning the sale of fruit before its ripeness becomes apparent: he sells it to him outright, or on condition that it be picked, for the full rental payment, and then allows him to leave it on the trees. This stratagem is reported from Abū Hanīfa, al-Thawrī, and others. At other times, they would lease him the land for the full rental payment and enter into an orchard-sharing contract with him for the trees on preferential terms—for example, by stipulating that the owner receive only one part in a thousand of the fruit.

This stratagem can be approved only by those who permit orchard-sharing, such as Abū Yūsuf, Muhammad, and al-Shāfiī according to his earlier position. Abū Hanīfa, however, does not permit it under any circumstances. Likewise, according to his later position, al-Shāfiī permits it only for date palms and grapevines. In this transaction, they have thus been compelled to designate the rental payment as consideration for the use of the land, while granting the other party either the gratuitous use of the trees or preferential terms in the orchard-sharing contract.

Because of the pressing need for this transaction, one of Imam Ahmad’s followers who wrote a work refuting legal stratagems listed this device among the permissible stratagems—meaning the device of granting preferential terms in the orchard-sharing contract. Yet the express position reported from Ahmad and most of his followers is that this very stratagem is invalid, as is also the position of Mālik and others.

The prohibition of these stratagems is unquestionably correct, because Abd Allah ibn Amr related that the Prophet (peace and blessings be upon him) said: “It is not lawful to combine a loan and a sale, nor to impose two stipulations in a sale,