Must adjoining orchards of the same fruit type follow each other in the permissibility of sale based on the ripening status?

Chapter on Selling Assets and Fruits

Al-Mughni

Book of Sales

Book 12 · Issue 1 · Bab 4

Open in Qurani

Primary text

The sale of one section of a fruit type in two adjacent orchards is not permitted until the ripening (bada' al-salah) is evident in one of them, regardless of whether the orchards are adjacent or distant. This is the position of Al-Shafi'i. The primary rationale is that what has not yet ripened is treated as secondary and dependent upon what has ripened to prevent the harm arising from shared ownership and conflicting possessors. The default status requires that each item be considered on its own merit, and since the other orchard does not share the same potential harm, it should not follow the ruling of the first, just as if they were distant.

Supporting text

A narration attributed to Ahmad permits the sale of an unripened tree if the ripening is evident in a nearby tree within the same land area. Al-Malik also adopted this view, arguing that they are close in their state of ripening, resembling a single area of cultivation, and the purpose of avoiding calamity (gahan) has been met.