according to those who regard return for a defect as a new sale, that he return the date palms while retaining the fruit. Asbagh stated this in al-Wādiha concerning an invalid sale, so the same must follow for return on account of a defect, since this too annuls a sale, and rescinding an invalid sale is unanimously understood to annul it. Thus, there are two clear positions.

Section

If he harvests the fruit in this situation as well, the ruling is as explained above concerning his harvesting it before pollination. As for the fourth case in the first situation—where he purchases a date palm bearing no fruit, then waters and tends it until it bears fruit and the fruit ripens, and subsequently discovers the defect—the fruit belongs to the buyer, whether it has dried or not, been harvested or not, and whether it still exists or is no longer available. This is because it is yield to which he has become entitled by bearing the risk of loss. This is Ibn al-Qāsim’s position in al-Mudawwana, and I know of no explicit statement from him to the contrary on this point. However, his position in Ibn al-Mawwāz’s book concerning an established third-party claim of title would require him to return the palm together with its fruit and recover the expenses of watering and tending it, so long as the fruit has not dried. Likewise, according to Abū Zayd’s report from him concerning such claims, he would return it together with its fruit and recover the expenses of watering and tending it, so long as the fruit has not been harvested. This is also Ashhab’s position in al-Mudawwana where he purchases fruit that has already been pollinated.

According to Ashhab’s position, there is no distinction here between purchasing date palms bearing no fruit and purchasing them with fruit, whether unpollinated or already pollinated. This is because, until it ripens, he regards the fruit as ancillary to the trees, with no portion of the price allocated to it—even though he is entitled to it only after pollination, unless he stipulates its inclusion—since it cannot validly be sold separately from the trees. This is also Ibn al-Mājishūn’s position concerning an invalid sale: he returns the trees together with their fruit so long as it has not been harvested. There is no distinction in this respect between return for a defect, return because the sale is invalid, and return following an established third-party claim of title.

Section

Accordingly, there are four views concerning the point at which the fruit becomes yield belonging to the buyer in cases of return for a defect, an established third-party claim of title, and an invalid sale: (first) it becomes his yield upon pollination; (second) it does not become his yield until it ripens; (third) it does not become his yield until it dries; and (fourth) it does not become his yield until it is harvested.

The rationale for the first view is that, through his care and labour, the fruit has reached the stage at which it would belong to the seller in a sale unless the buyer stipulated its inclusion. It must therefore count as yield belonging to him. The analogous precedent is fruit that has ripened or dried. The rationale for the second view is that it does not become his