disposal does not transfer the risk of loss. Rather, taking possession of leased property permits its disposal without transferring the risk of loss.

The sale of cucurbit crops falls into the same category. Some scholars permit their sale only one picking at a time, because selling them otherwise involves selling something not yet in existence. They regard this as selling fruit before it begins to ripen.

Some of these scholars further say that selling the plants together with their roots is like selling the trees themselves together with their fruit, which is permissible before the fruit begins to ripen. They cite the words of the Prophet, may Allah bless him and grant him peace, in a hadith agreed to be authentic:

“Whoever sells date palms that have been pollinated, their fruit belongs to the seller unless the buyer stipulates that it is his.”

If the buyer stipulates that the fruit is included, it becomes part of the sale. Here, selling fruit before it begins to ripen is permissible as an adjunct to the sale of the trees themselves. For this reason, tending it is the buyer’s responsibility. It is well known, however, that in the case of trees, the trees themselves are what is sought, whereas with cucurbit crops, it is the produce that is sought. The two therefore cannot be treated as analogous.

Other scholars permit the sale of cucurbit crops. This is the view of Mālik and others, and one position within Ahmad’s school. This is the more correct view, since these crops cannot be sold in any other way: one picking cannot be distinguished from another. As explained above, when something can be sold in only one way, its sale is not prohibited. The Prophet, may Allah bless him and grant him peace, only forbade the sale of fruits whose sale could be deferred until they begin to ripen. Cucurbit crops therefore do not fall under his prohibition.

For this reason, many scholars have included orchard contracts under his prohibition. They say that if an orchard is contracted out for a specified sum to someone who tends it until it bears fruit, this constitutes a sale