Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of the Followers of his Facebook Page "Fiqhi"
Answer to a Question
To: Shifan AbdulHamid
Question:
(Our dear Scholar and Ameer, As-Salaam Alaikum Wa Rahmatullah Wa Barakatuhu In our country there is a practice of selling produces from the tree itself, before harvesting. For eg produces such as Clove, pepper coconut etc. are solved in such a manner. The land owner will plant, water and fertilize the plants to maximise the yield and when fruits are produced in the plan, those fruits are sold on an estimated price, so the buyer have to harvest it and deal with it as appropriate. The buyer will pay the agreed price to the seller (the land owner) before harvesting. Ones the sale is done (Price is agreed between Buyer and seller), the Seller (i.e. the land Aowner) is not responsible for the produces any more, the buyer can harvest it immediately, or he can delay it until he sees fit, but it is his responsibility to protect the crops (from Animals, robbers etc.) Is this practice allowed in islam? May Allah bless you and give victory to this ummah under your leadership) end
Answer:
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh,
I have understood from your question that you are asking about selling fruit while it is still on the tree. This means a man comes to the owner of the trees and says, "I want to buy the fruit of this fig tree for the whole season," and the fruit of the tree remains for him to eat from and sell until the fruit of the tree ceases for this season, and they agree on a specific price... You are asking if this is permissible.
If this understanding is correct, then here is the answer:
Yes, this transaction is common in many Muslim countries and is known in Fiqh (jurisprudence) as "Selling fruits while they are on their roots" (Bay’ al-thimar wa hiya ‘ala usuliha) and is commonly called "Tree guarantee" (Dhaman al-shajar)... This is permissible, but on the condition that the fruit has begun to ripen (badu salahihi). It is not necessary for all of it to ripen at once, as it does not ripen all together. I will quote for you some of the evidences and details mentioned in our book, The Islamic Personality, Volume II, Chapter: "Selling Fruits While They are on Their Roots":
"The Sharia ruling regarding this guarantee—meaning the purchase of fruit present on the tree while it is still on its tree—has specific details. This is because the fruit is examined: if its ripening has begun—meaning it has become possible to eat from it—then the guarantee (the sale) is permissible in this case. If the fruit has not yet begun to ripen—meaning it has not yet started to become edible—then its sale is not permissible. This is due to what Muslim narrated from Jabir (ra), who said:
نَهَى رَسُولُ اللَّهِ ﷺ عَنْ بَيْعِ الثَّمَرِ حَتَّى يُطِيبَ "The Messenger of Allah ﷺ forbade the sale of fruit until it is good (wholesome)." (Muslim)
And also narrated from him:
نَهَى رَسُولُ اللَّهِ ﷺ ... وَعَنْ بَيْعِ الثَّمَرِ حَتَّى يَبْدُوَ صَلَاحُهُ "The Messenger of Allah ﷺ... forbade the sale of fruit until its ripening is apparent." (Muslim)
And what Al-Bukhari narrated from him as well:
نَهَى النَّبِيُّ ﷺ عَنْ أَنْ تُبَاعَ الثَّمْرَةُ حَتَّى تُشْقِحَ، قِيلَ مَا تُشْقِحَ، قَالَ: تَحْمَارُ وَتَصْفَارُ وَيُؤْكَلُ مِنْهَا "The Prophet ﷺ forbade the selling of fruit until it tushqih. It was asked: What is tushqih? He said: It turns red or yellow and can be eaten from." (Al-Bukhari)
And Al-Bukhari narrated from Anas bin Malik from the Prophet ﷺ:
أَنَّهُ نَهَى عَنْ بَيْعِ الثَّمَرَةِ حَتَّى يَبْدُوَ صَلَاحُهَا، وَعَنْ النَّخْلِ حَتَّى يَزْهُوَ، قِيلَ: وَمَا يَزْهُو؟ قَالَ: يَحْمَارُ أَوْ يَصْفَارُ "He forbade the sale of fruit until its ripening is apparent, and dates until they yazhu. It was asked: What is yazhu? He said: They turn red or yellow." (Al-Bukhari)
And also narrated from him:
إِنَّ رَسُولَ اللَّهِ ﷺ نَهَى عَنْ بَيْعِ الثِّمَارِ حَتَّى تُزْهِيَ، فَقِيلَ لَهُ: وَمَا تُزْهِيَ؟ قَالَ: حَتَّى تَحْمَرَّ. فَقَالَ رَسُولُ اللَّهِ ﷺ: أَرَأَيْتَ إِذَا مَنَعَ اللَّهُ الثَّمْرَةَ بِمَ يَأْخُذُ أَحَدُكُمْ مَالَ أَخِيهِ "The Messenger of Allah ﷺ forbade the sale of fruits until they tuzhi. It was asked of him: What is tuzhi? He said: Until they turn red. Then the Messenger of Allah ﷺ said: See, if Allah prevents the fruit, for what does one of you take his brother's wealth?" (Al-Bukhari)
And Al-Bukhari narrated from Abdullah bin Umar that the Messenger of Allah ﷺ:
نَهَى عَنْ بَيْعِ الثِّمَارِ حَتَّى يَبْدُوَ صَلَاحُهَا، نَهَى الْبَائِعَ وَالْمُبْتَاعَ "He forbade the sale of fruits until their ripening is apparent; he forbade both the seller and the buyer." (Al-Bukhari)
In a narration in Muslim, the wording is:
نَهَى عَنْ بَيْعِ النَّخْلِ حَتَّى يَزْهُوَ، وَعَنْ السُّنْبُلِ حَتَّى يَبْيَضَّ وَيَأْمَنَ الْعَاهَةَ "He forbade the sale of date palms until they yazhu, and the ears of grain until they whiten and are safe from blight." (Muslim)
These Hadiths are all explicit in forbidding the sale of fruit before ripening. Thus, the spoken meaning (mantuq) of these Hadiths indicates the impermissibility of selling fruit before its ripening is apparent. Its implied meaning (mafhum) indicates the permissibility of selling fruit if its ripening is apparent. Accordingly, the guarantee of trees whose fruit has appeared—such as olives, lemons, dates, and others—is permissible if it has begun to be edible, and it is not permissible if it has not yet begun to be edible.
The fact that 'the beginning of ripening' (badu al-salah) in fruit means it becoming edible is understood from the Hadiths narrated regarding this. By scrutinizing the Hadiths narrated about the prohibition of selling fruit before its ripening is apparent, we find that several interpretations were mentioned. In the Hadith of Jabir, it says: "until its ripening is apparent" (حَتَّى يَبْدُوَ صَلَاحُهُ) and: "until it is good" (حَتَّى يُطِيبَ). In the Hadith of Anas: "He forbade the sale of grapes until they turn black, and the sale of grains until they harden" (نَهَى عَنْ بَيْعِ الْعِنَبِ حَتَّى يَسْوَدَّ، وَعَنْ بَيْعِ الْحَبِّ حَتَّى يَشْتَدَّ) narrated by Abu Dawood. In another Hadith by Jabir: "until it tushqih" (حَتَّى تُشْقِحَ). In the Hadith of Ibn Abbas: "until it is edible" (حَتَّى يُطْعَمَ). Consequently, all these Hadiths converge on one meaning, which is: until it starts to become edible.
By looking at the reality of fruits, it is seen that the start of being edible differs according to the fruits. Some of them start to be edible by a visible change in their color, showing signs of ripening, such as dates, figs, grapes, pears, and the like. Some of them have their ripeness determined by turning them over or by experts looking at them, such as watermelons, due to the difficulty of perceiving the change in color upon ripening. Others have their edibility determined by the start of the flower turning into a fruit, such as cucumbers, gherkins, and the like. Based on this, what is meant by 'the beginning of ripening' in all fruit is the beginning of its suitability for eating. This is evidenced by what Muslim narrated from Ibn Abbas that he said:
نَهَى رَسُولُ اللَّهِ ﷺ عَنْ بَيْعِ النَّخْلِ حَتَّى يَأْكُلَ مِنْهُ أَوْ يُؤْكَلَ "The Messenger of Allah ﷺ forbade the sale of date palms until he eats from it or it is eaten." (Muslim)
It is also evidenced by the agreed-upon Hadith narrated by Jabir: "until it is good" (حَتَّى يُطِيبَ). From this, the permissibility of selling gherkins, cucumbers, and the like becomes clear; meaning the permissibility of guaranteeing the cucumber patch as soon as it starts to give fruit—that is, as soon as the flower starts to turn into a cucumber. Thus, the fruit is bought while it is a flower and before it blossoms; meaning the fruit in this case is bought before it exists, as soon as something of it begins to exist. This is not considered selling the non-existent (bay' al-ma'dum), because its fruit comes successively and does not exist all at once. Thus, the entire fruit of the cucumber patch is sold for its entire season, what exists and what has not yet existed. This is because there is no difference between the ripening of the fruit becoming apparent by redness like dates, or by blackness like grapes, or by a change in color like pears, and its ripening becoming apparent by the appearance of some of it and the successive flowering and fruiting of others. However, fruit for which the beginning of the transformation of its flowers into fruits is not considered—such as watermelons—this is not permissible. It is not permissible to sell almonds while they are blossoms, nor figs while they are unripe ('ajr) before ripening begins. What is meant by selling it while it is on the tree—meaning the tree guarantee—is that the sale of fruit while on the tree is restricted by its ripening becoming apparent, i.e., by the appearance of what indicates the beginning of the fruit's ripeness.
The 'beginning of ripening' of the fruit does not mean the beginning of ripening of every single fruit, as this is impossible; fruit ripens piece by piece or in small clusters and then follows successively. Nor does it mean the beginning of ripening in each orchard separately, nor the beginning of ripening of all orchards. Rather, what is meant by its ripening being apparent is the beginning of ripening of the genus of the fruit if its varieties do not differ in ripening, like olives, or the beginning of ripening of its type if its varieties differ in ripening, like figs and grapes. For example, if the ripening of some date palms in an orchard becomes apparent, it is permissible to sell all the date fruits in all the orchards. If the ripening of a type of apple in some trees becomes apparent, it is permissible to sell that type of apple in all orchards. If the ripening of olives in some small trees of an orchard becomes apparent, then it is permissible to guarantee the olives in all orchards. This is because the Hadith says: "He forbade the sale of date palms until they yazhu, and the ears of grain until they whiten and are safe from blight," and it says: "He forbade the sale of grapes until they turn black, and the sale of grains until they harden." Thus, it explained the ruling for the fruit of each genus specifically and each type specifically, saying about grain "until it hardens," and about black grapes "until they turn black." So, the ruling is related to the ripening of each genus becoming apparent regardless of the other genera, and each type regardless of the other types. The phrase "beginning of ripening" mentioned in the Hadith regarding one genus and one type applies to some of the fruit, no matter how little, especially since the reality of fruit shows that it ripens successively.
From this, it becomes clear that it is not permissible to guarantee any tree—meaning to sell the fruit of any tree—before its ripening is apparent..."
I hope the answer is clear.
Your brother, Ata Bin Khalil Abu Al-Rashtah
17 Jumada al-Ula 1438 AH 14/02/2017 CE
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