Is currently bearing fruit included when fruit-bearing trees are pledged?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If fruit-bearing trees with apparent fruit are pledged, the fruit does not enter the pledge, mirroring the rule in sales. However, if the fruit is not apparent (unripe or not visible), it enters the pledge. This is based on the principle that the pledge, being a weaker contract than sale, follows the stricter rule concerning apparently detached benefits. Furthermore, existing wool and milk, as well as a fetus and other items included in a sale, enter the pledge because the pledge is a contract pertaining to the object itself.
Supporting text
Al-Shafi'i holds that the fruit never enters the pledge under any circumstance. Abu Hanifa maintains that the fruit enters the pledge in all cases because, in his view, a pledge cannot be valid on the principal (tree) without the fruit; thus, the fruit enters by necessity for the validity of the contract.