Al-Shafi‘i diverges from Malik on the question of the ʿarīyah in four respects:
- The very rationale for the concession, as already noted.
- The legal nature of the ʿarīyah: the transaction for which the licence was granted is, in his view, not a true gift; it is called a gift only figuratively.
- His requirement that the price be paid on the spot when the sale takes place.
- Its subject-matter: for him it is confined to dates and grapes alone, whereas Malik extends it to anything that can be stored and dried.
Ahmad ibn Hanbal agrees with Malik that an ʿarīyah is a gift, yet he parts company with him on the scope of the concession. In Ahmad’s view the licence benefits the donee—the one on whose behalf the trees were set apart—not the donor. Accordingly, the donee may sell that produce, on the stipulated terms, to whomever he wishes; he is not restricted to selling it back to the donor, as Malik holds.
Abu Hanifah likewise agrees with Malik that the ʿarīyah is a gift, but he differs concerning the character of the concession. For him it is not an exception to the prohibition of muzābanah, nor does it fall, in general, under the rules of sale. Rather, it is a permission for the donor to retract his gift before the beneficiary has taken possession of it. Thus it is not a sale at all; it is a specific form of revoking a gift, whereby the donor gives an equivalent amount of dried dates, assessed by estimation, in return.
The cornerstone of Malik’s position is that the ʿarīyah, in the form he described, rests on a well-known Sunnah practiced in Madinah. They explain that a man would donate certain palm-trees from his orchard, yet found it burdensome for the beneficiary to enter his property; he was therefore allowed to buy those trees back, on the basis of estimation, with dried dates payable at harvest time.
Among the proofs that the dispensation is meant for the donor is the hadith of Sahl ibn Abi Hathmah: “The Messenger of Allah, peace and blessings be upon him, forbade selling dried dates for fresh dates except that he permitted the ʿarīyah to be sold by estimation so that its people might eat it fresh.” They argue that the phrase “so that its people might eat it fresh” shows the licence is confined to the donor, for he and his household are, on the face of it, “its people.”
It may be countered, however, that “its people” could mean whoever purchases it, whoever they may be. Yet the word “fresh” gives a rationale that does not suit the donor; on al-Shafi‘i’s view it does fit, for it describes those who possess neither fresh dates nor dried dates with which to buy them. For that reason the hadith supports al-Shafi‘i.
As for Malik’s claim that the ʿarīyah is a gift, its linguistic basis is that the lexicographers define ʿarīyah as “a gift.” They disagree over the origin of the term: some say it is so called because it is “stripped” of a price, while others trace the word to the verb aʿra—“to ask or request”—as in the Qur’anic verse: “and feed the satisfied one and the petitioner” (22:36).
Malik further stipulates that the purchase dates must be handed over at harvest—that is, payment may be deferred until that time—because the Sharia has authorised estimation in the case of dates.