As for the “first form,” scholars hold three opinions concerning it. The first is that it falls under the prohibition on selling fruit before it begins to ripen.

On this view, some resort to a legal stratagem: leasing the land and entering into a crop-sharing agreement for tending the trees. This is the position of a group of followers of Abū Hanīfah and al-Shāfiʿī, and some followers of Ahmad, including al-Qādī Abū Yaʿlā in his “Book on Invalidating Legal Stratagems.” Ahmad’s explicitly recorded position, however, is that these stratagems are invalid. This is also the position of Mālik and others, and many such arrangements are invalid by scholarly consensus.

The second opinion distinguishes between cases where the proportion of land is large and those where it is small. If treeless land constitutes more than two-thirds and the trees less than one-third, the land may be leased, with the sale of its fruit included implicitly as a subsidiary part of the transaction. This is Mālik’s opinion. There are two opinions concerning the one-third limit.

The third opinion permits this without qualification, whether the proportion of land is smaller or larger. This is the position of a group of earlier and later scholars, including Ibn ʿAqīl, a follower of Imam Ahmad, and others. It is also what has been transmitted from the Companions. Harb al-Kirmānī, Abū Zurʿah al-Dimashqī and others narrated through an established chain of transmission that, after Usayd ibn Hudayr died, ʿUmar ibn al-Khattāb—may Allah be pleased with him—leased out his orchard for three years, collected the rent in advance and used it to discharge a debt Usayd owed. And the like of