Thus, Abu Bakr narrated through his chain of transmission from al-Shaʿbī, who said: “ʿUtbah ibn Furqad came to ʿUmar and said, ‘I have purchased a tract of land in al-Sawad.’ He asked, ‘From its people?’ He replied, ‘Yes.’ ʿUmar said, ‘The people of Kufah are its people.’”
He also narrated through his chain of transmission from Ibn ʿAbbās that Ibn ʿAbbās disapproved of purchasing the land of al-Ḥīrah. In the narration of Yaʿqūb ibn Bukhtān, when Aḥmad was asked about residing in Baghdad and purchasing its houses, he said: “Buy it from him, but do not reside in it; its yield should be for a fair value. I do not approve of its sale.” He also said, in the narration of Abū Ṭālib: “He may purchase what he needs and what will provide his family’s sustenance; anything beyond basic sustenance, then no.”
He permitted the purchase of whatever necessity required from it. In the narration of Mihnā, he gave an unrestricted ruling: when asked about selling and purchasing the land of al-Sawad, he permitted the purchase but disapproved of the sale. Thus, he stated without qualification that purchasing it was permissible. This is understood as applying to the extent of need, because necessity has an effect on the permissibility of sale, as demonstrated by the arāyā sale—that is, exchanging fresh dates for dried dates on the basis of estimation. This is permitted because of the need to purchase fresh dates, even though it is prohibited outside the arāyā transaction. Likewise, lending bread and dough is permitted in cases of necessity, even though it is prohibited outside a loan.
In reality, the purchase is a rescue and ransom. There is nothing objectionable in concluding a contract as a means of rescue, making it permissible for the person offering the compensation. It is prohibited, however, for the person receiving it, as demonstrated by freeing a captive from the hands of polytheists in return for compensation paid to them: it is a permissible act of rescue and ransom from the perspective of the one paying, but prohibited from the perspective of the one receiving. The two cases are alike, since that transaction is with polytheists, and here too the basis is a kharāj contract with polytheists.
Likewise, if a witness testified against a man that he had emancipated his slave or divorced his wife, but the judge rejected the testimony, and he then purchased the slave from his master and obtained a khulʿ for the woman from her husband in exchange for compensation he paid to him, that would be permissible for the person paying it, since it would rescue the slave from bondage and the wife from unlawful intercourse. The compensation would be forbidden on the part of the master and the husband, because they would be taking it without right; the same applies to the seller of al-Sawad.
Aḥmad said in the narration of al-Marwazī: “The proof for purchasing al-Sawad while not selling it is the practice of the Companions of the Messenger of Allah, may Allah bless him and grant him peace. They permitted the purchase of muṣḥafs (copies of the Quran), but disapproved of selling them.”
This is juristic preference, not analogy. It has also been said that the way to answer this is to treat the purchase as a lease, so that it would be a lease expressed in the wording of a sale. This does not depart from Aḥmad’s position, because he permitted purchasing it but disapproved of selling it. Moreover, he restricted this to cases of necessity; had it been regarded as a lease, he would not have prohibited the seller from entering into it, nor would he have restricted it to cases of necessity.
As for exchanging the buildings and plantings subsequently added to the land, the explicit position transmitted from him is that this is prohibited. In the narration of Yaʿqūb ibn Bukhtān, concerning a man who says, “I sell you the structure, but not the underlying land,” he said: “This is deception.” He likewise said in the narration of al-Marwazī: “I sell you the structure, but not the underlying land—this is deception.” He therefore prohibited this. It has been said that he prohibited it only because buildings are ordinarily made from the soil of the endowed land, and thus their sale is invalid because they form part of it.