by the Prophet (peace and blessings be upon him), who said: “Milk in an udder may not be sold.” This differs from leasing the animal in order to tend it and milk it, which is analogous to leasing land and trees.

[Section: If He Sells Him Only the Fruit and Leases Him the Land for Residence]

Section

The foregoing applies when the land and trees—or the trees alone—are leased to someone who tends them and takes the fruit in return for a known consideration. If, however, the owner sells him only the fruit and leases him the land for residence, then only the first principle mentioned from Ibn Aqīl applies here. Part of this principle is also reported from Mālik and from Ahmad in one of the two reports, provided that residence is the predominant purpose. This is because there is a need to combine the two, and what is impermissible when contracted separately may be permissible when combined, as in the analogous cases discussed above.

This applies when both residence and the fruit are intended, as occurs in the orchards of Damascus. An orchard is leased during the summer season for residence and for taking its fruit, without the lessee performing any work whatsoever to produce the fruit. Rather, that work is the responsibility of the lessor who has assumed liability under the arrangement.

Under that principle, the transaction is permissible even if no fruit whatsoever has yet appeared, whether it is all of one kind or consists of several distinct kinds, just as this is permissible in the first category. It is permitted only because the fruit is combined with the usufruct. In reality, this combines a sale and a lease, unlike the first category, which may be regarded as a lease: here, the burden of bringing the fruit to completion falls on the party assuming liability, and the fruit comes into being through his labor; by contrast, in the first category, the trees become fruitful only through the lessee’s labor.

For this reason, people call it damān (an assumption of liability), since it is neither a pure sale nor a pure lease. It was thus given the name of the general undertaking found in exchange transactions and elsewhere—namely, damān—just as jurists use this term in the statement: “Throw your goods into the sea, and I shall be liable for them.” The first category is likewise called damān, although that arrangement is termed a lease. If the present arrangement is called a lease or rental, that is because part of it is a lease or rental, while it also includes a sale.