of fruit, for the lessee here is the one who waters the trees and cultivates the land. His position with regard to the trees is therefore like that of a tenant with regard to the land. The purchaser of fruit, by contrast, is like the purchaser of a standing crop; the two arrangements cannot therefore be treated alike.

Moreover, after the death of Usayd ibn al-Hudayr, ‘Umar ibn al-Khattāb, may Allah be pleased with him, leased out his orchard for three years, collected the rent, and used it to discharge Usayd’s debt. This was related by Harb al-Kirmānī in his Masā’il and by Abū Zur‘a al-Dimashqī in his History, with an authentic chain of transmission.

Furthermore, with the agreement of the Companions, ‘Umar ibn al-Khattāb imposed kharāj (land tax) on land containing date palms and grapevines, assessing a portion for the land and another for the trees. Most of those who dispute our position on this question regard this as a lease, yet it is a damān contract covering both land and trees. I have discussed this question at length in Legal Maxims.

Our concern here, however, is “relief for losses caused by calamities.” If we hold that this contract is invalid, how, then, is the transaction to be conducted?

One answer is that the owner leases out the land and enters into a crop-sharing agreement for tending the trees on it. This is the view of a group of al-Shāfi‘ī’s followers and others, and it is also the view of Judge Abū Ya‘lā in his Refutation of Legal Stratagems. Ahmad, however, expressly declared this stratagem invalid. This is the correct view, as we have demonstrated its invalidity on numerous grounds in the Book of the Refutation of Legal Stratagems.

One of these grounds is that if either contract is made conditional upon the other, the arrangement is invalid. If, on the other hand, he concludes them as two separate contracts, he may not grant such preferential terms with respect to property entrusted to his administration, such as an endowment