In our school, there are also two reported positions on whether leased property may be sublet for more than its original rent, because this involves making a profit from something for which one bears no liability.

A third reported position permits the higher rent if the lessee has made improvements to the property, so that the additional rent is in return for those improvements. Thus, the two reported positions concerning the resale of purchased fruit parallel the two concerning the subletting of leased property.

It would also be a tenable view to say that, in the case of fruit, only resale above the purchase price is prohibited, corresponding to the reported position prohibiting an increase in rent.

This discussion clarifies the rationale underlying the issue: the fruit has perished before the buyer could take the possession intended by the contract, so the seller bears the loss, just as the lessor bears the loss of benefits before the lessee can receive them. Placing the property at the buyer’s disposal is not an end in itself; its purpose is to enable the buyer to take possession of what was sold. Fruit still on the trees is neither securely kept nor in the buyer’s possession; hence, stealing it does not incur the penalty of amputation. Nor is the purpose of the contract for the fruit to remain on the trees; rather, it is for it to be harvested and picked. The seller must therefore provide what enables the buyer to pick and water it.

The growth that develops after the sale is included in it, even though it did not yet exist, just as benefits are included in a lease even though they do not yet exist. How, then, can something nonexistent be regarded as having been taken into definitive possession such that liability for its loss passes to the recipient?