for the seller to water the trees or bear any maintenance costs whatsoever. What has been sold is real property, possession of which is taken by granting the purchaser unrestricted access; the fruit is included implicitly and as an accessory. Thus, if it may be sold before ripening, it may be sold here as an accessory. Were it sold in its own right, however, it could not be sold before ripening.

Section

This discussion concerns the outright sale of fruit and field crops.

As for damān and qabāla contracts—where the land and trees are leased together for a single payment to someone who tends them and receives their fruit and crops—there are three views concerning this contract.

The first is that it is invalid. This view is expressly reported from Ahmad and is also the position of Abū Hanīfa and al-Shāfi‘ī, on the grounds that, in this arrangement, it is ancillary to fruit before it begins to ripen.

The second is that it is permissible when the land is the principal object of the contract and the trees are ancillary to it, as when there are only a few trees. This is Mālik’s position.

The third is that it is permissible without qualification. This was stated by a group of jurists from our school and others, including Ibn ‘Aqīl. This is the correct view, because leasing land is permissible, and this cannot be done without including the trees in the contract. Including them as an accessory is therefore permissible because of the need, even if this entails selling fruit before it begins to ripen, provided it is sold together with the trees themselves. Moreover, this is not a sale