Chapter Three
The portion of the price that must be remitted
As for the amount of loss that obliges the application of the calamity rule (jawāʾiḥ):
– With respect to fruit, the threshold is one-third.
– As for leafy vegetables, two views are reported:
• One holds that the rule applies to every loss, whether small or great.
• The other sets the threshold at one-third, just as with fruit.
Ibn al-Qāsim measures the one-third by volume, whereas Ashhab measures it by market value. Thus, according to Ashhab, whenever the loss in value equals one-third of the amount that would have been obtained by measure, one-third of the purchase price is deducted, whether or not the shortfall also reaches one-third in volume.
Ibn al-Qāsim, on the other hand, says: When one-third of the fruit by volume is destroyed, then—
• If the produce is of a single variety whose quality does not vary from tree to tree, one-third of the price is remitted;
• If the orchard contains several varieties of differing value, or if the quality varies within the same variety, he first determines the value of the lost one-third relative to the total value and deducts that proportion from the price. In other words, where the value is uniform he considers only volume, but where values differ he considers both volume and value.
The Mālikīs justify fixing a quantitative threshold—even though the ḥadīth on jawāʾiḥ is unrestricted—by noting that custom plainly distinguishes between minor and major loss: everyone knows that a small portion of any crop inevitably perishes, and the buyer is deemed to have accepted this by customary understanding, even if it is not verbally stipulated. Moreover, the very term “calamity” implies a difference between small and large loss.
They state: Once a distinction is required, a concrete measure must be adopted, and the Sharīʿah sets quantitative limits in many areas. True, the school is somewhat inconsistent—sometimes treating one-third as “major,” as here, and sometimes as “minor”—but it is consistent in using it as the dividing line. In general, precise limits are hard to establish by analogy alone.
For this reason al-Shāfiʿī remarked: “If I were to uphold the rule of jawāʾiḥ, I would apply it to both small and large losses alike.” He added that using one-third as the divider is explicitly attested in the law of bequests, in the Prophet’s statement—peace and blessings be upon him—“One-third, and one-third is much.”
Chapter Four
The time at which the remission is granted
Regarding the period during which jawāʾiḥ may be claimed, the school agrees that it applies so long as the fruit must remain on the trees in order to reach full ripeness.
They differ, however, if the buyer leaves the fruit on the trees to sell it fresh, harvesting it bit by bit:
• One opinion extends jawāʾiḥ to this period by analogy with the agreed-upon time;
• Another denies the remission, distinguishing this period from the one in which jawāʾiḥ is unanimously applied. They argue that this time resembles the agreed period in one respect and differs from it in another; thus, whoever gives precedence to the similarity applies jawāʾiḥ, while whoever gives precedence