If, however, the usufruct is not intended at all in its own right, but arises only because the fruit must be harvested—as when someone buys grapes or unripe dates and wishes to stay in the garden while picking them—then this is not permissible before signs of ripeness appear. This is because the usufruct is sought here only on account of the fruit, so the fruit cannot be treated as incidental to it. Nor is there any need to lease that usufruct unless the sale of the fruit is itself permissible. This differs from the preceding category: when the usufruct is intended in its own right, it must be leased, while the fruit must also be purchased. [Combining the two is therefore necessary, because once the lessee rents the premises as a residence, he cannot allow someone else to buy the fruit.] Moreover, his purpose in enjoying the usufruct cannot be fulfilled unless there is fruit for him to eat, since what he intends is to benefit both by residing in that place and by eating its fruit.

For this reason, when the principal purpose is residence and there are only a few trees—as when a house contains several date palms, a young grapevine, or the like—permissibility is the position of Mālik and follows by analogy from most of the recorded statements of Ahmad and others. If, however, the purpose alongside residence is to trade in the fruit, and that commercial interest outweighs the residential usufruct, then prohibition is even more warranted here than in the preceding case, as Mālik and Ahmad distinguished between the two. If the purpose is residence and personal consumption, this resembles intending to reside there and drink from the well. Even if the value of the fruit consumed exceeds that of the residential usufruct, permissibility here is more evident than in the preceding case, though less so than in the first, according to those who draw such distinctions. Under the position of Ibn Aqīl, which is transmitted from the early generations, all these arrangements are permissible, as we have explained, because their elements are combined in a single transaction.

If he further stipulates that the grantor under the damān arrangement plough a cucumber patch for him, this is like leasing land from a man for cultivation on condition that the lessor plough it. He has thus leased the man’s land and hired him to provide work that remains his obligation. This is permissible, just as if he were to hire a camel or donkey from him on condition that