Shajar (trees and their rulings in sale, pre-emption, orchard contracts and the sacred enclosure)

In language shajar is a plant with a firm stem on which it stands, and shajara is one tree. Kala' is grass, dry or moist, which spreads without a stem; zar' is what is sown by seed; and nabat (plant) is wider than both. ¹ The jurists use the word for anything with a stem whose root is not cut. The Malikis define it in the orchard contract as having a firm root whose fruit is gathered while the roots remain. ¹

The jurists agree that cutting or uprooting the plants of the sacred enclosure is forbidden, whether they are trees or other plants, provided people do not usually grow them and they are green, on the hadith that its grass is not cut and its trees are not felled. ¹

The Hanafis, Shafi'is and Malikis hold that trees pass with the sale of land even when not named, fruiting or not, provided they are green and fixed; a cut or dry tree is like household goods, which pass only by explicit word. The Hanbalis hold a tree passes if the land is sold with its rights, and that the word orchard, when used of the sale, includes the trees. ^{1 2}

Most jurists (Hanafis, Shafi'is, Hanbalis) hold there is no pre-emption in buildings or trees sold without the ground, and that pre-emption applies to them when sold with the ground. The Malikis hold pre-emption applies to real estate including buildings and trees, in what is divisible among partners: houses, lands and palms. ²

The Hanafis hold that the harim of a tree on unclaimed land is five cubits on each side, so that no one else may plant in it, since the tree needs it to harvest and to lay out its fruit; some say the measure is the need, not a fixed amount. The Malikis set the harim by each tree's benefit and ask the people of knowledge about each tree. The Hanbalis say the harim is as far as its branches reach around it, and for a palm, as far as its fronds extend. ^{2 3}

Musaqat is handing a person's trees to another to water and work for a known share of the fruit. Most jurists (the Malikis, the Hanbalis, Abu Yusuf and Muhammad among the Hanafis, and an older view of the Shafi'i) allow it for any fruit-bearing tree, on the report that the Prophet ﷺ dealt with the people of Khaybar for a share of what came out. ³ The tree must have a stem and bear fruit; melons and the like, or non-fruiting trees, are not included. Abu Hanifa held the contract void, but his two companions held it valid for people's need, and the fatwa follows them. The Shafi'is in their newer view allow it only for palms, as a concession limited to what the text names, with the trees fixed, known and visible; they treat grapes like palms, since both bear zakat. ^{3 4}

Most jurists (Hanafis, Malikis, Shafi'is) dislike relieving oneself under a fruit-bearing tree, even if it is permitted ground and out of season, to keep it clean, without calling it forbidden since the contamination is not certain; the Hanafis and Malikis add any restful shade. The Hanbalis forbid urinating or defecating in useful shade and beneath a tree bearing fruit that is eaten, since it spoils it and people are repelled; out of season there is no harm. ⁴