Question:
It was stated in the book The Islamic Personality (Ash-Shakhsiyyah al-Islamiyyah), Volume 2, p. 302, under the title "Selling fruits while they are still on their trees": "...Muslim narrated from Ibn Umar that the Prophet ﷺ said:
مَنْ ابْتَاعَ نَخْلاً بَعْدَ أَنْ تُؤَبَّرَ فَثَمَرَتُهَا لِلَّذِي بَاعَهَا، إِلَّا أَنْ يَشْتَرِطَ الْمُبْتَاعُ
'Whoever buys date palms after they have been pollinated, their fruit belongs to the one who sold them, unless the buyer stipulates otherwise.' (Narrated by Muslim)
And what Ahmad narrated from Ubadah bin al-Samit:
أَنَّ النَّبِيَّ ﷺ قَضَى أَنْ تَمْرَ النَّخْلِ لِمَنْ أَبَّرَهَا إِلَّا أَنْ يَشْتَرِطَ الْمُبْتَاعُ
'That the Prophet ﷺ ruled that the dates of the palm tree belong to the one who pollinated it, unless the buyer stipulates otherwise.' (Narrated by Ahmad)
It is deduced from the explicit meaning (mantuq) of the hadith that whoever sells date palms with pollinated fruit, the fruit does not enter the sale but remains the property of the seller. It is deduced from its implied meaning (mafhum) that if they are not pollinated, they enter the sale and belong to the buyer. What is meant by the implied meaning here is the concept of contrary implication (mafhum al-mukhalafah), which in this case is the concept of the condition (mafhum al-shart)." End quote.
The scholars of Usul (principles of jurisprudence) mentioned this hadith in the study of the concept of the attribute (mafhum al-sifah), not the concept of the condition (mafhum al-shart).
Why then was it said that it is mafhum al-shart and not mafhum al-sifah? I hope for clarification on this.
Answer:
It is necessary in matters of Usul to encompass the researched issue from all its sides! For example, the hadith which the questioner focused the research on is: "Whoever buys date palms after they have been pollinated, their fruit belongs to the one who sold them, unless the buyer stipulates otherwise," and the other hadith: "The Prophet ﷺ ruled that the dates of the palm tree belong to the one who pollinated it, unless the buyer stipulates otherwise." You took a part of them and focused the research on it! You took the first part of the hadith and were content with it! You studied it on the basis that the dispute is between the concept of the condition من ابتاع نخلاً... and the concept of the attribute بعد أن تؤبر.... Naturally, the concept of the attribute here is what is applicable, because the ruling is suspended upon the pollination (tabbir); thus, a sale before pollination differs in ruling from a sale after pollination.
As for the concept of contrary implication for the condition مَنْ ابتاع... meaning مَنْ لم يبتع..., no ruling is attached to it. This is because if there is no sale, there is no ruling, as nothing has happened for us to ask who the dates belong to! Accordingly, if the hadith were restricted to "Whoever buys date palms after they have been pollinated, their fruit belongs to the seller" and the other hadith: "The Prophet ﷺ ruled that the dates of the palm tree belong to the one who pollinated it," then your statement that the concept is mafhum al-sifah would be correct. However, you neglected the important part—rather the most important part—at the end of the hadith, which is the conditional exception, i.e., the restriction by the condition إلا أن يشترط المبتاع. If you were to study and ponder it, you would find that it has suspended the concept of the attribute, and what has become applicable is the concept of the condition taken from the restriction by the condition.
This is because the presence or absence of pollination became suspended with the conditional exception, as the consideration became the stipulation (ishtarāt). If the buyer stipulates that the palms are his along with their fruit, this condition is executed whether the sale was before the pollination of the palms or after it. If he buys the palms before pollination, the dates are his. If he buys the palms after pollination and stipulates that the dates are his, they are his. Thus, what is relied upon is the condition resulting from the conditional exception. If the buyer stipulates it, then the palms with the fruit are his, whether the sale was before pollination or after it; meaning, there is no application for the concept of the attribute.
It seems that the confusion came to you from two aspects:
First: You thought that there is no condition in the hadith except in the form of من ابتاع, so you focused the research on the concept of the condition in من ابتاع and on the concept of the attribute in بعد أن تؤبر. You found that the concept of the attribute is what constitutes proof, but you left out the sentence إلا أن يشترط المبتاع and did not include it in the research, so this sentence became like idle talk during your research! As mentioned in The Islamic Personality: "the restriction by the condition would be idle talk with no benefit."
Second: You do not see a condition except by using tools (adawat), excluding what is an explicit declaration of the word 'condition' and its derivatives. This is not correct. The word 'condition' (shart) and its derivatives sometimes take the place of the tool and have a mafhum (implied meaning). If you say to your son, "I will give you a prize on the condition that you pass the exam," this has a mafhum, which is "no prize for the boy if he does not pass the exam." The phrase "on the condition that you pass the exam" is in the sense of "if you pass the exam"... and so on.
Accordingly, the concept of the condition in the hadith is not taken here from the tool من باع, as this does not affect the ruling in terms of the concept of the condition. Rather, what affects the ruling is إلا أن يشترط المبتاع. This exception by condition stands in the place of using a tool, i.e., "if the buyer stipulates, then for him is such-and-such, and if he does not stipulate, then for him is the opposite of such-and-such..."
In summary: The exception by condition has a mafhum, whether it comes after a conditional tool as in the first hadith—meaning: (Whoever buys has such-and-such if the buyer stipulates, and has other than that if he does not stipulate)—or it was without a conditional tool as in the second hadith—meaning: (The Messenger of Allah ﷺ ruled such-and-such if the buyer stipulates, and other than such-and-such if the buyer does not stipulate). Mentioning this conditional exception makes the concept of the condition the one that is applicable.
As for what you mentioned about the expression of the scholars of Usul, it is correct because they did not mention the last part of the hadith. Rather, they placed an expression and studied it, which is "Whoever sells pollinated date palms, their fruit is for the seller." Here, the ruling is focused on the pollination, so the applicable concept is the concept of the attribute. Such partial sentences exist in the books of Usul; they place an expression or the meaning of the hadith or a part of it and apply the rule to it. Like their saying: "In grazing sheep, there is Zakat." The hadith is not like this; rather, it is from a long hadith by Abu Dawood regarding the Zakat of livestock, as follows: "...and in grazing sheep, if they are forty, then in them is one sheep..." narrated by Abu Dawood from a long hadith. The condition إذا كانت أربعين is clear in it, but the scholars of Usul left the condition because their research was on the concept of the attribute, so they restricted it to "grazing sheep" and formulated it as "In grazing sheep, there is Zakat." They gave it as an example of the concept of the attribute, meaning that if they are not grazing, there is no Zakat—while knowing that the concept of the condition is applicable, because if they are not forty, there is no Zakat on them even if they are grazing. If someone were to mention the hadith "...and in grazing sheep, if they are forty, then in them is one sheep..." and then say that the concept of the attribute is what is applicable here, his statement would not be precise. Rather, the correct thing to say is that the concept of the condition is also applicable. However, if he extracted it and mentioned "In grazing sheep, there is Zakat" and said the concept of the attribute is what is applicable, his statement would be correct, but only in relation to this extracted text and not in relation to the hadith.