of fruit before it begins to ripen, and is therefore impermissible. Some have claimed a consensus prohibiting this, but their claim is incorrect. Rather, it is established that ʿUmar ibn al-Khattāb, may Allah be pleased with him, contracted out Usayd ibn Hudayr’s orchard for three years, taking the payment in advance and using it to settle a debt owed by Usayd, since he was his executor.

Ibn ʿAqīl permitted such orchard contracts alongside leases of agricultural land when the two could not be separated. Mālik permitted this as an adjunct to the land, up to one third. An incident such as this involving ʿUmar ibn al-Khattāb would ordinarily become widely known, yet no objection from any of the Companions has been reported. The correct position, therefore, is what ʿUmar ibn al-Khattāb did, for the distinction between a sale and an orchard contract is the distinction between a sale and a lease.

Do you not see that the Prophet, may Allah bless him and grant him peace, forbade selling grain before it hardens? Yet leasing land to cultivate it is permissible, even though the lessee seeks the grain. He seeks, however, to obtain it through his own work, not the seller’s work. Likewise, someone who leases an orchard to tend and water its trees until they bear fruit is in the position of a lessee, not that of a buyer who purchases fruit while the seller bears the expense of tending and watering the trees.

If it is said:

“These are tangible goods, whereas a lease cannot have tangible goods themselves as its subject.”

The reply is:

The answer is twofold. First, these tangible goods were produced through his own work from the leased asset