The first report rules it impermissible; this is the narration of Ibn Wahb. The second allows it, but only when the reserved amount is a few pounds, and this is the narration of Ibn al-Qāsim.

Within this discussion the jurists unanimously agree that a man may sell the fruit of his orchard while excluding from the sale certain specified date-palms, by analogy to the permissibility of purchasing those very palms on their own. They are likewise agreed that he may not exclude an unspecified number of palms unless the buyer identifies them after the contract, for that would be the sale of something neither party has seen.

They differ, however, about a man who sells the entire orchard and, only after the sale, reserves a number of palms. The majority prohibit it because the quality of the palms varies; a report from Mālik permits it. Ibn al-Qāsim rejects Mālik’s view regarding date-palms yet allows the seller to reserve a number of sheep.

Mālik and Ibn al-Qāsim also disagree about a man who buys a fixed number of palms from his own orchard on the understanding that the buyer will designate them after purchase: Mālik permits it, whereas Ibn al-Qāsim forbids it.

They likewise differ when the seller stipulates that he is keeping a measured quantity of produce from the orchard. Abū ʿUmar Ibn ʿAbd al-Barr says:

The jurists of the major centers whose legal opinions are relied upon have prohibited this, and I have compiled the book according to their schools because of the Prophet’s—peace and blessings be upon him—prohibition of thunyā in sales; for it is the exclusion of a measured portion from an unmeasured bulk.

As for Mālik and the early scholars of Madīnah, they permit it when the reserved amount is less than one-third and forbid it when it exceeds that, taking the prophetic prohibition of thunyā to apply to anything beyond one-third. They liken the sale of the remainder to the sale of a heap whose volume is unknown and is sold in bulk while reserving from it a certain measure. Even this underlying analogy is itself disputed—that is, when the excluded portion is a specified measure.

The scholars also differ about combining a sale and a lease in a single contract. Mālik and his companions allow it, whereas the Kūfan jurists and al-Shāfiʿī do not, considering the price in such a case to be unknown. Mālik replies: “If the rent is specified, the price is not unknown,” and those who prohibit it may have deemed it an instance of “two sales in one.” All agree, however, that one may not combine a salam contract with an ordinary sale as described above.

Mālik’s position on combining salam with partnership varies: on one occasion he allowed it, on another he forbade it. In all these questions the scholars’ disagreement turns on how strongly each perceives the stated grounds for prohibition to be present. Whoever judges the prohibitive cause to be compelling forbids the transaction; whoever does not, permits it. This ultimately rests on the discernment of the mujtahid, for such issues can plausibly be argued either way. Hence it may be correct to say that each mujtahid is right within his own reasoning, and for that reason some scholars have allowed people a choice in matters like these.