Sunday, June 02, 2013

Q&A: Selling fruits/produce (thimaar) while still on trees? | Sheikh Ata’ Abu Rashtah

Question:
It is mentioned in the book, The Islamic Personality Volume II, on page 259 (English edition), under the sub-title of "Selling fruits/produce (thimaar) while still on trees" that:
"....Muslim narrated from ibn Umar that the Prophet صلى الله عليه وسلم said:
«من ابتاع نخلاً بعد أن تؤبَّر فثمرتها للذي باعها، إلا أن يشترط المبتاع»
"Whoever buys palm-trees after it has been dusted (pollinated), its produce is for the one who sold it unless the buyer makes it a condition."
And also due to that Ahmad narrated from Ubadah bin As-Samit:
"that the Prophet صلى الله عليه وسلم decreed that the dates of the palm-tree are for the one who dusts (pollinates) them unless the buyer makes them a condition."
So it is deduced from the clear statement (mantuq) of the hadith that whoever buys palm-trees upon where there are pollinated produce, the produce is not included in the sale but rather remains the seller's property. And it is deduced from its understanding (mafhum) that if they are not pollinated then they are included in the sale and are for the buyer. The meaning of the understanding is opposite understanding (mafhum mukhalafa) which is the understanding of the condition (shart)."
The Usool scholars have mentioned this hadith under the study of the understanding of characteristic (Mafhoom As-Sifa), not under the understanding of the condition (mafhoom al-shart).
So why was it mentioned (in the book) that it is the understanding of the condition, not of the characteristic? Please clarify.
Answer:
It is a duty in matters of Usool to view the examined issue from all its angles! So for example, the questioner focused their research on this hadith:
«من ابتاع نخلاً بعد أن تؤبَّر فثمرتها للذي باعها»
"Whoever buys a palm-tree after it has been pollinated, its produce is for the one who sold it unless the buyer makes it a condition."
As well as the second hadith:
«من ابتاع نخلاً بعد أن تؤبَّر فثمرتها للذي باعها»
"that the Prophet صلى الله عليه وسلم decreed that the dates of the palm-tree are for the one who pollinates them unless the buyer makes them a condition." "إلا أن يشترط المبتاع"،
You took only one part of these ahadith and focused your research on it! You took only the first part of the Hadith and did not look further! And you studied it as though the dispute lies between the understanding of the condition (mafhoum al-Shart) من ابتاع نخلاً..."Whoever buys palm-trees" and the understanding of the characteristic (mafhoum Al-Sifa) "بعد أن تؤبر"after it has been pollinated", so naturally, the understanding of the characteristic here is the part that is being acted upon, because the verdict is in conjunction with the pollination, as the verdict of selling before pollination differs from selling after pollination.
As for the opposite understanding of the condition "من ابتاع" "whoever buys..." which is "whoever does not buy..." no hukm (ruling) applies to it, because if there was no sale, there would be no hukm. So when nothing had occurred, why ask about who the dates would be for?!
Therefore, if the hadith was limited to "whoever buys a date-palm tree after it has been pollinated, then it's produce is for the one who sold it", and the second hadith limited to: "that the prophet decreed that the dates of the palm-tree are for the one who pollinates them", then your claim would have been correct that the understanding here is an understanding of characteristic (MafhoumSifa). However, you neglected the important part at the end of the Hadith which is the conditional exemption, i.e. restraining to the condition mentioned in the hadith "unless the buyer makes it a condition", which had you studied and reflected upon it, you would have found that it disables the understanding of the characteristic (Mafhoum Sifa), and thus what is acted upon is the understanding of the condition (mafhoum shart) derived from restraining to the condition.
This is because pollination or non-pollination has become disabled by the conditional exemption, because the lesson is connected to the condition itself. So if the buyer conditioned that the date-palm trees and their produce are all for him, then his condition must be fulfilled regardless whether the trees were pollinated before or after the selling process, so if he buys the trees before pollination then the produce is for him, likewise if he buys them after pollination and he conditions that the produce are for him then it is so. Hence, we rely upon the condition resulting from the conditional exemption, so if the buyer places the conditions, then the date-palm trees with the produce are for him whether the selling process took place prior to or after pollination, i.e. we do not use the understanding of the characteristic (mafhoum sifa).
It seems that two angles confused you:
Firstly: you thought that there is no condition in the hadith except in the format of "whoever buys", so you focused your search on the understanding of the condition (mafhoum shart) in "whoever buys", as well as the understanding of the characteristic (mafhoum sifa) in "after it has been pollinated", thus you found that the argument lies in the understanding of characteristic but you left aside the sentence in the hadith "except if the buyer conditions", you did not include it in your research so this sentence became worthless in your research! As was mentioned in the Islamic Personality, "adherence to the condition would have become worthless".
Secondly: You do not see the conditional particles, without looking at the actual wordings of the condition and its derivatives, this is an incorrect approach, because the wordings of the condition and its derivatives sometimes fall in place of the particle, and it thus becomes understood. For example, if you say to your son "I will reward you on the condition that you pass the exam" then this has a specific understanding, which is "no reward for the boy if he does not pass his exam", so the word "with the condition that you pass the exam" means "if you pass the exam"... and so on.
Therefore, the understanding of the condition in the hadith is not taken from the particle "whoever sells" as this does not affect the hukm (legislative ruling) in terms of the understanding of the condition (mafhoum shart), but what affects the hukm is "except if the buyer conditions", so this exception in the condition comes in place of using the tools, i.e. "if the buyer puts forth a condition, then he may have this, and if he does not put forth a condition then he takes the opposite of that..."
Summary:
The exception in the condition itself has an understanding, whether it was mentioned after the conditional particle as in the meaning of the first hadith: "if a person buys something, then he takes such and such if he presents a condition, and will have other than such and such if he does not present a condition" or whether it was without a conditional particle as in the meaning of the second hadith: "the Prophet صلى الله عليه وسلم decreed that if the buyer puts forth a condition, then he may have this, and if he does not put forth a condition then he takes the opposite of that..." If the exceptional condition is mentioned, then this makes the conditional understanding to be the one in effect.
As for what you have mentioned about the phrase of the Usooli scholars, it is correct, because they did not mention the last part of the hadith, they placed one phrase and studied it, which is: "من باع نخلاً مؤبرا فثمرتها للبائع" "whoever sells a pollinated date-palm tree, then its produce is for the seller" here, the hukm is focused on the idea of pollination, so the understanding in effect is the understanding of the characteristic. Fragmented sentences such as these exist in the books of Usool, they place a sentence or a meaning or a part of a hedeeth and focus the legislative principle on it. Such as their saying: "Zakah is paid on the freely grazing sheep", but the hadith isn't as such, but it is taken from a long hadith for Abu Dawood regarding the Zakah of the cattle, and the part of the hadith in picture is as follows: «...وَفِي سَائِمَةِ الْغَنَمِ إِذَا كَانَتْ أَرْبَعِينَ، فَفِيهَا شَاةٌ...» "...When the number of freely grazing sheep is between forty-two and 120, their zakah is one ewe...." Narrated by Abu Dawood taken from a long hadith. The condition is clear: "when the number is forty", but the Usooli scholars left the condition because their research was focused on the understanding of the characteristic, hence they limited their search on "grazing sheep" and formulated it as "Zakah is paid on the freely grazing sheep" and used it as an example to the understanding of the characteristic, i.e. if the sheep were not freely grazing, no zakah is paid, noting that the conditional understanding is still valid because if the sheep were not forty in number then no zakah applies to them, even if they were freely grazing. On the other hand, if one of them mentions the hadith:«وَفِي سَائِمَةِ الْغَنَمِ إِذَا كَانَتْ أَرْبَعِينَ، فَفِيهَا شَاةٌ...» "...When the number of freely grazing sheep is between forty-two and 120, their zakah is one ewe.." then says that the understanding of the characteristic is used here then his saying would not be precise, but if he added saying that the conditional understanding also exists then that would be correct. If, however, he summarized it mentioning that "Zakah is paid on the freely grazing sheep",and saying that what is used here is the understanding of the characteristic, his saying would be applicable only to this summarized part, not to the whole hadith.
And so, that opposite understanding (mafhoum mukhalafa) in the whole hadith is the conditional understanding, not the understanding of the characteristic.
21 Jumada al-Akhirah 1433 AH
12/05/2012

No comments: