Section
If he harvests the fruit before discovering the defect, he has the choice between returning the palms and compensating for the diminution in value, or retaining them and recovering compensation for the defect, as explained above concerning his harvesting the fruit before pollination.
As for the second case in the third situation—where he purchases date palms bearing pollinated fruit and discovers the defect after the fruit has ripened—according to Ibn al-Qāsim, he returns the palms together with their fruit, even if the fruit has dried or been harvested, provided it is still available. If it is no longer available, he returns an equivalent quantity if its measure is known, its value if its measure is unknown, or the sale proceeds if it has been sold. According to his view, he recovers the expenses of watering and tending in all these cases. He does not allow the sale of the fruit to stand once it has ripened for the portion of the price attributable to it, as he does in cases of pre-emption once it has dried. Sahnūn regarded this as an inconsistency in his statements, whereas Ibn ‘Abdūs drew a distinction between the two cases. Ashhab said: “Once harvested, it constitutes yield belonging to the buyer.” Thus, the views on this case amount to three: first, that the fruit must be returned with the palms in all circumstances, which is Ibn al-Qāsim’s position; second, that it constitutes yield belonging to the buyer; and third, that its sale stands for the portion of the price attributable to it.
Section
If we hold that its sale stands for the portion of the price attributable to it, or that it constitutes yield belonging to the buyer, there are three views concerning the point at which this ruling takes effect: first, when the fruit ripens; second, when it dries; and third, when it is harvested. There is no disagreement that, if the fruit is destroyed by a calamity in this case, the palms are returned and the buyer recovers the entire price.
As for the fourth situation—where he purchases date palms bearing ripe fruit and subsequently discovers a defect in them—he returns them together with their fruit in all circumstances, even if the fruit has been harvested, provided it is still available. If it is no longer available, he returns an equivalent quantity if its measure is known, just as someone who purchases two items and discovers a defect in the more valuable one. If the fruit’s measure is unknown, its sale stands for the portion of the price attributable to it, and he returns the palms and recovers the portion attributable to them. Another view is that he returns the value of the fruit and recovers the entire price.