The divergence of opinion in itself does not make the calamity-remission (jā’iḥah) obligatory—meaning: whoever holds that freshness is a sought-after quality in a purchase, just as fragrance is sought, rules that the remission applies; whereas whoever does not regard the two qualities as the same says that no remission is due. On this basis they also differed over whether the rule of jawā’iḥ applies to leafy vegetables.
Third Section: Items That Follow the Principal Object of Sale
First Issue: Selling date-palms that bear fruit—when does the fruit follow the sale of the tree and when does it not?
The third group of legal inquiries, dealing with the accessories that accompany what is sold, contains two well-known questions.
- If date-palms are sold while they bear fruit, under what circumstances does the fruit follow the sale of the trees and when does it not?
The majority of jurists hold that when someone sells date-palms whose fruit has not yet been pollinated, the fruit belongs to the buyer; but if the sale occurs after pollination, the fruit belongs to the seller unless the purchaser stipulates otherwise. All other kinds of fruit are to be treated in the same way as date-palms in this regard. The basis is the ḥadīth transmitted by Ibn ʿUmar, that the Messenger of Allah—peace and blessings be upon him—said:
“Whoever sells date-palms that have been pollinated, their fruit belongs to the seller unless the purchaser stipulates it.”
They say: Since the Prophet—peace be upon him—assigned the fruit to the seller after pollination, we learn by argumentum a contrario (dalīl al-khiṭāb) that before pollination it belongs to the purchaser without any condition.
Abū Ḥanīfah and his colleagues, however, maintain that the fruit belongs to the seller both before and after pollination. Here the unspoken implication is taken not from dalīl al-khiṭāb but from an a fortiori inference (mafhum al-aḥrā wa-l-awlā): if the fruit is granted to the seller after pollination, then all the more so before pollination. They liken the appearance of fruit to childbirth: just as the offspring of a slave-girl belongs to the seller unless the purchaser stipulates otherwise, so too the fruit.
Ibn Abī Laylā advances a third view: whether pollinated or not, once the tree itself is sold the fruit belongs to the buyer, whether or not he stipulates it. He therefore set the ḥadīth aside on the basis of analogy, regarding the fruit as an integral part of the object sold—an approach that makes sense only if, in his estimation, the ḥadīth was not firmly established. Abū Ḥanīfah, by contrast, did not reject the ḥadīth itself; he merely opposed the implication others drew from it.
Hence the dispute among Abū Ḥanīfah, al-Shāfiʿī, Mālik, and those who follow them turns on the clash between dalīl al-khiṭāb and the a fortiori implication, also called faḥwā al-khiṭāb. In this particular case the latter is weak, even though in principle it is regarded as stronger than dalīl al-khiṭāb.
Ibn Abī Laylā’s dissent, for his part, rests on preferring analogy to transmitted evidence, and that, as we have said, is likewise weak.
Pollination (ibār), according to the scholars, is: in the case of date-palms, inserting the spadix of the male palm into that of the female; for other trees, the stage when the blossoms open and the fruit sets; the ‘male-fig placement’ practised with certain figs is included under this heading. Whether crops have an equivalent act of pollination is disputed within the Mālikī school: Ibn al-Qāsim reports from Mālik that their “pollination” is to rub the ear, by analogy with other fruits.
Is the operative cause of the ruling the act of pollination itself, or simply the arrival of its season? One view says it is the season; another, the act. On this question hinges the disagreement in the case where some