The first principle is that whenever there is land or residential buildings among trees and need dictates that the trees and the land or buildings be leased together, this is permissible on account of that need, even though it entails a slight degree of contractual uncertainty. This is especially so when the orchard is an endowment or the property of an orphan, for its benefit may not be allowed to go unused. In customary practice, the land or buildings alone are not leased, and no one would enter into a lease on those terms; even if someone did lease them, it would be at a price far below their value. Whatever is indispensable to something permissible is itself permissible. Thus, everything whose permissibility is established by a textual proof or consensus necessarily entails the permissibility of whatever is indispensable to it, provided that no textual proof or consensus prohibits those concomitants. If, however, evidence indicates that its necessary concomitants are prohibited—and whatever must be avoided in order fully to avoid something prohibited is itself prohibited—the two proofs conflict.

In the present issue, the permissibility of leasing has been established by the Sunnah and by the agreement of the jurists whose schools are followed. By contrast, the prohibition of including the trees in the lease is disputed, and there is no textual proof for it.

Furthermore, whenever the land alone is leased and the trees are retained, the lessee cannot be trusted with the fruit. This leads to divided control and a troublesome partnership. A parallel case is where ripeness has become apparent in only one type of fruit. On the basis of this position, a ruling may be derived like that of al-Layth ibn Sa'd: “When ripeness has become apparent in one kind of fruit, and selling the kinds separately would cause harm, it is permissible to sell all of them together.” [This served to explain] the splitting of the transaction. Moreover, if the owner later wished to sell the fruit, he would find no one willing to buy it—while the land and buildings were under another person’s control—except at a steep discount. Further, if he leased the land and stipulated that the lessee must water the trees—when watering formed part of the subject matter of the contract—what was being paid for would itself become part of the payment. If he did not stipulate that the lessee water them, then, if the lessee did water them because the lessor had entered into a musāqāh arrangement with him concerning the trees, the lease would be valid only in conjunction with such an orchard-care partnership; and if—