“…until its soundness is evident,” he forbade both vendor and purchaser; hence it is clear that the ruling after this limit differs from the ruling before it, and that the prohibition applies to an unconditional sale that stipulates the fruit be left on the tree.
When the majority realised that the underlying reason was the fear that blight usually strikes the fruit before it ripens—evidenced by the Prophet’s (peace and blessings be upon him) words in the ḥadīth of Anas ibn Mālik, uttered after forbidding the sale of fruit prior to ripening: “Tell me, if God withholds the fruit, how could any of you lawfully take his brother’s wealth?”—they did not understand the prohibition as absolute (i.e., a blanket ban on every pre-ripening sale). Rather, they took it to refer specifically to a sale conditioned on the fruit remaining where it is until ripening, and therefore allowed the sale before ripening on the condition of immediate picking.
They then differed when the contract is concluded without any stipulation: should it be construed as requiring immediate picking—which is permissible—or as implying retention on the tree—which is impermissible? Whoever interpreted the absolute wording as implying retention, or regarded the prohibition as covering it by its generality, ruled it invalid; whoever interpreted it as implying immediate picking ruled it valid. The well-known position of Mālik is that an unrestricted contract is to be understood as a sale with retention, though it has also been reported from him that it is to be read as a sale with immediate picking.
The Kufan jurists, for their part, rely on the sound ḥadīth of Ibn ʿUmar in support of selling fruit unconditionally before it ripens, wherein the Messenger of God (peace and blessings be upon him) said: “Whoever sells date-palms after they have been fertilised, their fruit belongs to the seller unless the buyer also purchases it.” They argue: since the buyer may lawfully stipulate for the fruit, it follows that the fruit may be sold separately; thus, they treat the ḥadīth prohibiting the sale of fruit before ripening as a recommendation rather than an absolute injunction.
They also cite the report of Zayd ibn Thābit: “In the time of the Messenger of God (peace and blessings be upon him) people used to buy and sell fruit before its soundness appeared. When harvest time approached and payment fell due, the purchaser would protest, ‘The crop was struck by the weather, by blight and disease’—citing various defects. When their disputes became numerous before the Prophet, he, as though giving them counsel, said: ‘Do not sell fruit until its soundness becomes evident.’”
Some of them further contend that the Prophet’s phrase “until its soundness appears” merely means until the fruit itself becomes visible, adducing as proof his statement: “Tell me, if God withholds the fruit, how could any of you take his brother’s wealth?”
It would have been incumbent upon those Kufans who held this view, yet did not share Abū Ḥanīfah’s opinion that immediate picking is essential to the sale of fruit, to declare permissible the sale of fruit before its soundness appears on the condition that it be left on the tree.
The majority, however, limit the permissibility of selling fruit with such a condition before ripening to the specific case in which the fruit is sold together with its parent tree.
As for purchasing fruit unconditionally after it has ripened, there is no disagreement. In that circumstance, the majority of jurists in the various centres of learning consider an absolute contract to imply retention of the fruit on the tree, basing themselves on the Prophet’s (peace and blessings be upon him) words: “Tell me, if God withholds the fruit …” The reasoning is that calamities most commonly befall fruit before its soundness becomes apparent, whereas after—