According to the prevailing view, which takes blossoming as the decisive sign, Mālik says: If one and the same orchard contains several kinds of fruit whose times of ripening differ, no single variety may be sold until its own ripeness has become evident. Al-Layth disagreed with him on this point. As for kinds whose ripening periods are close to one another, Mālik allows some of them to be sold on the strength of the ripeness that has appeared in the others.

For Mālik, the “appearance of soundness” required for a single type of fruit is the presence of blossoming in part of the crop, not necessarily all of it—provided that this first blossoming is not so premature in one portion that the rest is far behind, but rather comes in a steady, successive pattern. The reason is that, as a rule, fruit is safe from blight once ripening begins in a harmonious, uninterrupted way.

Accordingly, Mālik holds that once ripeness shows on one palm tree in an orchard, it is permissible to sell that orchard and the neighbouring orchards as well, so long as all the palms involved are of the same species.

Al-Shāfiʿī, on the other hand, maintains that only the palms of the very orchard in which ripeness has appeared may be sold. Mālik’s concern is the moment when blight is no longer feared, assuming the timing is identical for the given species; al-Shāfiʿī’s concern is the incomplete formation of the fruit—arguing that, if it has not ripened, the sale amounts to trading in something not yet created, for the quality of ripeness being purchased does not yet exist. Yet, as he himself concedes, this requirement need not extend to every single piece of fruit but only to some of the fruit in one orchard—an opinion held by no one else. Such, then, is the best-known point of difference over the sale of fruit.

Another issue over which they disagreed in this chapter stems from the Prophet’s prohibition (peace and blessings be upon him) on selling grain in the ear until it whitens and grapes until they blacken. The scholars are unanimous that one may not sell wheat while it is still inside the ear, leaving the ear aside, because that would be selling something whose quality and quantity are unknown. They differed, however, on selling the ear itself together with the grain inside it.

The majority—Mālik, Abū Ḥanīfah, the scholars of Medina, and the scholars of Kūfah—permit such a sale, whereas al-Shāfiʿī forbids it even after the grain has hardened, regarding it as excessive uncertainty (gharar) and by analogy with selling grain mixed with its straw after threshing.

The majority cite two kinds of evidence: transmitted proof and analogy. The transmitted proof is the report from Nāfiʿ, from Ibn ʿUmar, that the Messenger of God (peace and blessings be upon him) “forbade the sale of palm-trees until they blossom, and of grain in the ear until it whitens and is safe from blight; he forbade it to both seller and buyer.” This wording adds to the version transmitted by Mālik, and any reliable addition is accepted. It is related that al-Shāfiʿī, when this additional wording reached him, retracted his earlier opinion, for in his method analogy cannot stand when a sound ḥadīth is present.

As for selling grain in the ear after it has been rubbed but before it has fully hardened, Mālik allows it only on the condition that the crop be cut. With regard to selling unharvested ears of grain, two opinions are reported from Mālik: one permitting it outright, and another prohibiting it unless the ears are tied into sheaves. Selling grain mixed with its straw after threshing is, to the best of my knowledge, unanimously disallowed when sold in bulk; but if the quantity is measured, Mālik allows it, and I know of no other opinion on the matter.

Those who allow the sale of grain in the ear if