necessarily requires tending it and keeping it continually at the buyer’s disposal until it has fully ripened, unlike taking possession of the trees alone. Each thing must be placed at the recipient’s disposal in the manner appropriate to it. The benefits of leased property provide evidence for this.

As for their argument based on the permissibility of disposing of it by sale, two positions are reported from Ahmad on this issue:

The first is that it may not be sold so long as the seller remains liable for its loss, because this would constitute selling something before taking possession of it, which is impermissible. On this view, the ruling claimed for the original case is not conceded.

The second position is that disposing of it is permissible. According to this position, it is comparable to the benefits acquired through a lease: if those benefits are lost before they are received, the lessor bears the loss by agreement. Nevertheless, they may be disposed of before possession is taken. This is because, in both cases, delivery has been effected to the extent possible, permitting disposal on account of the recipient’s ability to exercise control. Yet liability for loss has not passed to the recipient, because delivery has not been fully completed in the manner that enables the buyer or lessee to receive what is due in full.

Accordingly, in our view, permission to dispose of something and liability for its loss do not necessarily go together. Disposal may be permissible without liability, as in the present case. Liability may also arise without permission to dispose of the property, as where possession is taken in a legally defective manner—for example, when someone buys a qafīz (a measure of grain) from a heap but takes possession of the entire heap. The same applies to a heap before it is moved, according to one of the two reported positions, which al-Khiraqī preferred. Both permission and liability may arise together, and both may be absent.