is the position of Abū Hanīfa, Mālik and al-Shāfiʿī. Those who regard these arrangements as partnerships and recognize partnership as a separate contractual category permit them on the basis of explicit texts, not analogy, without considering them contrary to analogy. This is the position of the majority of the early scholars and groups of later scholars, including followers of Abū Hanīfa, such as his two leading disciples, and followers of al-Shāfiʿī, such as al-Khattābī and others. It is also the position of Ahmad and others. This approach is more thorough in its reasoning here.

The second ground is that the Prophet, may Allah bless him and grant him peace, only prohibited selling fruit before it begins to ripen, just as he prohibited selling grain before it hardens and grapes before they turn dark. Nevertheless, all four imams permit leasing land to someone who cultivates it until crops grow. This is not merely incidental to the grain. Likewise, leasing trees to someone who tends them until they bear fruit is not merely incidental to the fruit. Do you not see that sharecropping land in return for a share of the land is like tending trees in return for a share of their fruit; that lending land for use is like lending trees for use; and that the beneficiaries of an endowment benefit from the land’s crops just as they benefit from the trees’ fruit?

Thus fruit, although tangible property, is treated as yield and benefit in endowments, profit-sharing investment partnerships and orchard-sharing agreements, because it is continually replaced. Likewise, engaging a wet nurse is treated as obtaining a benefit because her milk is replenished. Hence, when fruit is sold after it begins to ripen, the seller bears the expense of bringing it to full ripeness.

As for the lease arrangement made by ʿUmar, it is the lessee who waters the trees and bears the expense of producing the fruit, so one cannot