If the husband demands the wife cut the fruit (ثمار) so that he can reclaim half of the principal palm trees after divorce before consummation, is he obliged to accept this condition?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
The husband is not obliged to accept the condition that she cuts the fruit so he can reclaim half the principal. This is because the established custom for this fruit is that it is only taken upon harvest (جذاذ), as demonstrated by sale. Furthermore, the husband's right has transferred to the value (price), and it cannot revert to the object itself except with her consent. Similarly, if the wife proposes letting him reclaim the principal after she harvests the fruit, or if he proposes reclaiming the principal and granting her respite until she harvests the fruit, neither party is obligated to accept the other's proposal because the right transferred to the value, necessitating mutual consent for return to the object.
Supporting text
It is argued that she should be compelled to accept the arrangement he proposes, as the detriment falls upon him. This is analogous to a situation where she offers him half the object along with its attached increase, or when he accepts a deficient object that she offers. If they mutually agree to any of these terms, it is permissible.