Is a stipulation by one of the contracting parties concerning the fruit (of a tree) valid, regardless of whether the fruit has begun to ripen (mu'abbara) or not?
Chapter on Selling Assets and Fruits
Al-Mughni
Book of Sales
Primary text
The stipulation concerning the fruit is valid for the party making the condition, whether the fruit has begun to ripen or not. This applies equally to the seller and the buyer. The evidence supporting this is that what was stipulated is a known part of what was included in the contract, which renders the stipulation sound, similar to selling a wall and stipulating ownership of a specific date palm tree. Furthermore, the Prophet, peace be upon him, prohibited "al-thunya" (an exception within a sale) unless it is known. Since the exception is made by one of the contracting parties, the stipulation of the fruit is valid, just as it is valid for the buyer. The validity of the buyer stipulating the fruit is established by agreement and by the saying of the Prophet, peace be upon him: "Unless the purchaser stipulates it."
Supporting text
Imam Malik holds that if the buyer stipulates the fruit after it has begun to ripen (ta'bir), it is permissible, as this is equivalent to purchasing it along with its origin tree. However, if the seller stipulates it before the fruit ripens, it is not permissible, because the seller stipulating it before ripening is analogous to selling it contingent upon its condition before it reaches full maturity, while stipulating its retention.