Is a settlement valid if agreed upon in exchange for a known portion or the entirety of a tree's fruit?
General Chapter
Al-Mughni
Book of Settlement
Primary text
The validity of such a settlement is debated. Imam Ahmad's view on the matter is reported as uncertainty ("La adri"). This uncertainty suggests the settlement may be valid. The justification for validity rests on the necessity and commonality of such arrangements, especially when refusal would lead to destruction (e.g., cutting the tree). Furthermore, this arrangement is interpreted not as a sale (which requires known commodities) but as mutual permission or license (*ibahah*). Thus, the owner of the air space permits the tree owner to keep the tree (forgoing the right to cut it), and the tree owner permits the air space owner to take the agreed-upon fruit. This permission is revocable, akin to mutual permission to reside in each other's houses or mutually permit eating from each other's orchards without fixed terms or lease conditions.
Supporting text
The prevailing opinion holds that such a settlement is invalid. This view is adopted by Al-Shafi'i and the majority of scholars. The reasoning is that the consideration (*iwad*) is unknown, as the fruit itself is unknown in quantity, and the portion thereof is also unknown. A condition for a valid settlement is knowledge of the consideration. Additionally, the consideration increases or changes over time, making it inherently variable.