unlike the first category, in which the trees bear fruit only through the lessee’s work.

For this reason, people call it damān (an undertaking of liability), since it is neither purely a sale nor purely a lease. It is therefore given the general name for an obligation undertaken in transactions for consideration and in other dealings: damān. Jurists likewise use this term in the statement: “Throw your goods into the sea, and I undertake liability for them.” The first category is also called damān, but that one is called a lease. When this category is called a lease or a rental, it is because part of it is a lease or rental, while it also includes a sale.

If, however, the usufruct is not sought at all for its own sake, but only for harvesting the fruit—for example, someone buys grapes or unripe dates and wishes to stay in the orchard to pick them—then this is not permissible before the fruit shows signs of ripening. Here, the usufruct is sought only for the sake of the fruit, so the fruit cannot be treated as incidental to it. Nor is there any need to lease the usufruct unless the sale of the fruit is permissible.

This differs from the preceding category. When the usufruct is itself an intended benefit, he needs to lease it and also needs to purchase the fruit; hence the need to combine the two transactions. If the lessee rents the property for residence, he cannot let someone else buy the fruit, nor can he fully obtain the benefit he seeks unless he has fruit to eat. His purpose is to enjoy residing in that place and eating its fruit.

Thus, when residence is the principal purpose and there are only a few trees—for example, a house containing a few date palms, a grape arbor, or the like—permissibility is Mālik’s position and follows by analogy from most of the express rulings of Ahmad and others.