Scholarly disagreement
Many jurists—among them the Shāfiʿīs, Ḥanbalīs, and Ẓāhirīs—hold that the sale of ʿarāyā is only lawful when the amount is less than five wasqs. The basic ruling is prohibition, and the ʿarāyā transaction is a dispensation; therefore one acts on what is certainly permissible and leaves what is doubtful. The uncertainty occurs in the wording of the hadith, “five wasqs or less than five wasqs,” and traces back to one of its transmitters, Dāwūd ibn al-Ḥuṣayn. For that reason they allow “less than five wasqs,” on which there is agreement, and disallow “five wasqs” because of the doubt. The default remains prohibition due to the Prophet’s ﷺ ban on muzābanah transactions.
Other scholars—among them the Mālikīs—consider it permissible even when the total reaches five wasqs. They rely on the narration containing the doubt, and on what is reported from Sahl ibn Abī Ḥathmah: “the ʿarīyah is three, four, or five wasqs.” This view is also attributed to Imām Aḥmad. Looking to the general nature of the concession, they see no harm in a slight increase, and it was the view preferred by our teacher ʿAbd al-Raḥmān Āl Saʿdī, may Allah have mercy on him.
Chapter: Selling Date Palms after Pollination
First ḥadith
ʿAbd Allāh ibn ʿUmar (may Allah be pleased with them both) narrated that the Messenger of Allah ﷺ said, “Whoever sells date-palms that have already been pollinated, their fruit belongs to the seller unless the purchaser stipulates otherwise.”
Muslim adds (1): “And whoever buys a slave, his property remains with the one who sold him unless the purchaser stipulates otherwise.”
Lexical notes
• abarat / abbarta: the verb appears with a single or doubled bāʾ.
– With the lighter form: abartu al-nakhl abran (patterned like “I ate food”).
– With the doubled consonant: abbartu al-nakhl taʾbīran (patterned like “I taught someone teaching”).
• taʾbīr (pollination): inserting pollen from the male palm into the inflorescence of the female.
• al-mubtāʿ: the purchaser, by inference from the reference to the seller. The term can also denote the seller; it is one of the contronyms (words that carry opposite meanings).