arising before the buyer is able to take possession. This is treated like a pre-existing defect, entitling him to a remedy or to compensation for diminished value, where the latter is recognized.

Since this is treated like the destruction of sold property before the buyer is able to take possession of it, no distinction is made between minor and major losses caused by a calamity, according to the better-known of the two reported positions. This is also the position of al-Shāfiʿī, Abū ʿUbaydah, and other jurists of hadith, because both the hadith and its underlying rationale are general in scope.

The second reported position sets the qualifying loss at one third or more, as Mālik holds. Some loss of fruit is ordinarily inevitable, so a threshold must be set for a calamity. This is fixed at one third, just as one third is the limit applied to bequests, vows, certain cases involving wounds, and other matters, because the Prophet, may Allah bless him and grant him peace, said:

“One third—and one third is much.”

According to the first reported position, the distinction is determined by customary practice. Whatever fruit ordinarily falls or is eaten by birds or other creatures is implicitly allowed for in the contract; a calamity is a loss beyond that. If the loss exceeds what is customary, the entire loss is deducted from the price. Likewise, if it exceeds one third and we adopt that threshold, the entire loss is deducted.

Is this third measured by value or by quantity? There are two views, both of which are also held within Mālik’s school.