Ahmad’s own rationale, however, was different, for he said, “This is deception.” What he meant was that selling the building would become a means of obtaining compensation for the land, and the principle of blocking the means is recognized in uṣūl al-fiqh.
Bakr ibn Muḥammad transmitted from his father, from Aḥmad, that he permitted the sale of such a building. Regarding a man who wished to bequeath one-third of his house, he said: “I disapprove of purchasing a house on the land of al-Sawad; rather, the building itself may be sold. If a man has wealth and a house, the value of the house’s building and his wealth should be assessed, so that he will have bequeathed one-third of his wealth in money and building.” This narration is sounder, because the building is his property and was not included in the waqf when it was established; therefore, he may sell it.
If he died owing a debt while holding land from al-Sawad, could his debt be paid from the lease revenue of that land? The apparent implication of Aḥmad’s words is that it could. Al-Marwazī and Fawzān said: “Abū ʿAbdullāh died owing a debt of forty-five dinars, and he instructed that it be paid from the revenue.” Fawzān’s wording is: “That it be paid from the revenue until he receives his due.” The basis for this is that the land was in his possession under a lease contract, and a lease does not terminate upon the death of the lessee; thus, his leasehold right remained legally his.
If he owed a dower that had become due from him, or another debt, and he surrendered the land to his creditor in settlement, that would be permissible. Aḥmad explicitly stated this, as transmitted by Muḥammad ibn Ḥarb, concerning a man who owed his wife a dower and possessed an estate in al-Sawad. He said: “His wife and any other creditor are alike; he may hand it over to her.” This means that he transfers to her his right to its usufruct, not the underlying land itself. In the narration of al-Marwazī, he said: “You know that this does not sustain us; I only take it out of necessity”—meaning the revenue of al-Sawad.
He also said: “Trade is dearer to me than the revenue of Baghdad. I prefer trade to the revenue of Baghdad because its original status is that of a waqf, yet the rulers and others have passed it from hand to hand through sales and grants of estates, removed the people whom ʿUmar had settled there from their possession, and imposed kharāj, which is rent—thereby causing it to be treated as usurped property. It is a foundational principle of mine that crops grown on usurped land belong to the owner of the land. For this reason, I prefer to take my livelihood from trade rather than from it, since it is wealth accepted only under necessity, and necessity may affect permissibility.”
In the narration of al-Marwazī, when he was asked, “Do you think a man may inherit a share of the land of al-Sawad?” he replied: “Does inheritance even apply to it?” He prohibited inheritance because it entails the transfer of ownership of the underlying land, and that is impermissible.
In the narration of Ḥanbal, he said: “Al-Sawad is the waqf that ʿUmar established for the Muslims. It is like a man who endowed a house to a man and his children, stipulating that it not be sold. The house belongs to the person for whom it was endowed. When the beneficiary dies, it belongs to his children by virtue of the waqf established by their father; it is not sold. Likewise, al-Sawad is not sold. Each succeeding holder possesses as much of it as his predecessor possessed, and it remains forever a waqf for the Muslims.” Thus, he made clear that it remains in the heir’s possession on the same basis as it had been in the possession of his predecessor.