Anyone who considers this matter soundly and carefully will see that it belongs to the category of leases and leasing arrangements known as damān. Ordinary people call it damān, while the early generations called it qibālah; it does not belong to the category of sales.

The rules governing sales do not apply here, such as the seller’s responsibility for the costs of delivering what is due in full. All the Prophet’s prohibitions—may Allah bless him and grant him peace—concerning the sale of things not yet in existence concern a different situation. These include his prohibition of the sales known as malāqīh, madāmīn, and habal al-habalah: selling what is in the loins of breeding males, what is in the wombs of females, and the offspring of offspring. They also include his prohibition of selling future years’ produce, known as mu‘āwamah, and similar transactions. In these cases, the purchaser buys the particular things that have not yet been created, while the seller tends the animals or trees from which they are to come. The seller breeds the animals and cultivates the trees, then delivers the resulting offspring and fruit to the purchaser. This is what people used to do in the pre-Islamic era.

This follows the majority’s interpretation of “habal al-habalah” as the sale of the offspring of offspring; its invalidation would then be due to uncertainty about the due date. These sales prohibited by the Prophet—may Allah bless him and grant him peace—are forms of gambling, which is maysir, and constitute the wrongful consumption of wealth. The owners of these animals and trees can postpone the sale until Allah creates whatever fruit and offspring He creates. They engage in such transactions only to take risks and gamble on chance.

Commercial dealings involving the lease of an orchard to someone who tends it, however, are like leasing land to someone who cultivates it, or granting a ground lease to someone who builds and plants on it, and similar arrangements.