it is a sale with a price payable in perpetual instalments, as some Kufan jurists maintain.

It has also been said that it is a perpetual lease with rent payable in instalments, as maintained by the scholars of our school, the Mālikīs and the Shāfiʿīs. Both positions depart from the analogical rules governing sales and leases.

The correct analysis is that this is a distinct transaction sharing features of both sale and lease. In falling outside both categories, it resembles an agreement granting the use of someone’s property as a passageway, for depositing refuse, for placing a beam, or for similar purposes, in exchange for an immediate payment. The recipient has neither acquired outright ownership of the property itself nor leased it; rather, he has acquired this particular right of use in perpetuity.

Likewise, if the imposition of kharāj were purely a lease, and ʿUmar and others had retained the land for the Muslims and leased it out, then the dwellings should also have been leased out, since they too belong to the Muslims when conquered by force. It would also mean that he had wronged the Muslims, for the rental value of the land is many times the kharāj. Moreover, according to the prevailing view among those scholars, the recipient would be entitled only to the trees standing on the land—date palms, grapevines and the like—as with someone who leases land containing plantings.

Furthermore, entrusting the land under agreements to share the produce of its trees and crops—as al-Mansūr and al-Mahdī did with the land of al-Sawād—would have been more beneficial to the Muslims, following the Prophet’s practice, may Allah bless him and grant him peace, with the land of Khaybar. For the only difference is that the owners of Khaybar are specified individuals, whereas the owners of the conquered ʿumrā lands are not restricted to specified individuals. Apart from that, it is likewise permissible to lease the land out, and permissible to enter into agreements to share the produce of trees and crops on land held as an endowment.