Another Fatwa regarding Issues of As-Salam
Question :
If a man gives some dirhams (money) in advance for dried dates whose weight is specified, is it permissible for him to take a number of date trees by estimate according to the amount of his money from the weight when the fruit just begin to ripen? Is this allowed or not?
Answer:
There is a difference of opinion regarding the ruling on this issue. From the people of knowledge are those who allow it and from them there are those who forbid it. Those who allow it, restrict it to the case of the fruit being taken instead of what is possessed with certainty and both parties being pleased with that, and they do not have a condition between them for that in the contract. They use the confirmed story of Jabir in the Sahih as a proof for this, and also the fact that the issue of preservation is broader than the issue of sales, and the people are more in need of it than they are in need of sales. This is also because it is from the matter of taking some of the rights and absolving oneself of what remains. This is also a way of making things easier on the debtor, being kind to him and showing leniency by taking the right in a lesser amount.
Those who prohibit it are the majority and their proof is the Hadith of Ibn 'Abbas that is confirmed in the Two Sahihs. He narrated that the Messenger of Allâh said:
"Whoever pays in advance for something, then let him pay in advance for a specified measurement, and a clear and specified weight for a specified amount of time."
The content of this Hadith is general. It has been said that the situation with Jabir was a specific situation that is not general, and the correct view is that this is prohibited as a way of cutting off the means of evil. This is also due to the Hadith of Ibn 'Umar that is recorded in the Two Sahihs concerning the prohibition of Al-Muzabanah. Al-Muzabanah is that a person sells the fruit of his garden if they are on palm trees for fruit that is weighed, and if it is a crop (still in the field) he sells it for measured food, and if it is grapes (in the vineyard) he sells them for measured raisins. The first opinion is the most correct, because the Hadith of Jabir is an obvious text concerning the allowance of this. This is also due to what proceeded of the reasons that necessitate its permissibility. In reference to the situation meaning that the person would receive less than his right or same as it or more than it, then this is agreed upon as being prohibited due to the generality of the previous Hadith from Ibn 'Umar.
Source:
The Permanent Committee
Fatawa Islamiyah, Vol. 4 Pages 379-380-381
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