Some of these scholars, however, permit this when the open land is the principal object of the lease and the trees are incidental, as is reported from Mālik. Others among them permit a stratagem whereby the land is leased and a separate contract is concluded for tending the trees in return for a share of their yield. However, if either contract is made conditional upon the other, the arrangement is invalid. If neither is made conditional upon the other, the orchard’s owner may require the lessee to pay the rent for the land without the fruit-sharing contract. Yet the lessee’s chief objective is the fruit, which forms a substantial part of what he seeks. Moreover, the property may be an endowment or belong to an orphan, in which case preferential concessions in its fruit-sharing contract are impermissible.

Although Judge Abū Ya‘lā mentioned this stratagem in his book Ibtāl al-Hiyal (The Invalidation of Legal Stratagems), following others, Ahmad’s expressly stated ruling is that it is invalid. Elsewhere, we have demonstrated with numerous proofs the invalidity of stratagems whose outward form contradicts their underlying reality and whose purpose is to do what Allah and His Messenger have forbidden—such as stratagems to circumvent the prohibition of usury, extinguish the right of pre-emption, and so forth.

Other scholars permit leasing the land and trees without this restriction, even when the trees are an intended object of the lease, as Ibn ‘Aqīl has mentioned. This is the sounder view, and it rests on two grounds.

The first is that when land and trees are combined, they may both be leased together, since ordinarily they cannot be separated.