The Law of Taking Fruit on a Roadside Tree
Question :
How does the law take fruit from a tree by the road? Is it permitted to be harvested and sold?
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Answer:
Bismillah was shalatu was salam' ala Rasulillah, wa ba'du,
Yourdakwah - We understand this tree is public property, because it cannot be owned or controlled by individuals, but may be used for the public interest. Therefore, limited to a shelter or for temporary parking, ulemas agreed to be allowed.
Furthermore, can you use the tree in the form of reducing some of the levels? For example, the fruit is taken. The scholars agreed, for those in need, may take the fruit of a public tree. Furthermore, scholars differ in opinion, for those who do not need it, can they eat fruit from this tree?
One of the scholars of Malikiyah - Ahmad an-Nafrawi - in his book al-Fawakih ad-Dawani stated,
وقع الخلاف بين العلماء في الأكل مما يمر عليه الإنسان في الطريق من نحو الفول والفواكه, ومحصله: الجواز للمحتاج من غير خلاف, وأما غير المحتاج فقيل: بالجواز, وقيل: بعدمه
There are differences of opinion among the scholars regarding the law of eating fruit on trees that are on the path that a person passes through, such as toro nuts or other fruit. the conclusion is permissible for people in need, there is no difference of opinion in this matter. while for people who do not need, some say it is permissible and some say it is not permissible.
(al-Fawakih ad-Dawani, 2/284).
Actually, the context of his information is a private tree whose garden is on the side of the road.
For this reason, An-Nafrawi is explaining that it is a prohibited act.
However, there is a hadith which supports the opposite opinion, the hadith from Abu Said al-Khudri radhiallahu ' anhu, the Prophet sallallaahu' alaihi wa sallam said,
إِذَا أَتَى أَحَدُكُمْ حَائِطًا فَأَرَادَ أَنْ يَأْكُلَ ، فَلْيُنَادِ: يَا صَاحِبَ الْحَائِطِ ثَلَاثًا ، فَإِنْ أَجَابَهُ وَإِلَّا فَلْيَأْكُلْ
If you pass a garden and want to eat then you should call the owner of the garden 3 times. If answered, (follow what is requested), and if there is no answer please eat.
(Narrated by Ahmad 11045 and destroyed by Shuaib al-Arnauth).
As-Syaukani explained,
ظاهر أحاديث الباب جواز الأكل من حائط الغير, والشرب من ماشيته بعد النداء المذكور من غير فرق بين أن يكون مضطرا إلى الأكل أو لا .. إلى أن يقول: والممنوع إنما هو الخروج بشيء من ذلك من غير فرق بين القليل والكثير
Dzahir hadith shows that it is permissible to eat fruit from someone else's garden and drink goat milk, after calling the owner as mentioned in the hadith (3 times a call), regardless of whether the person who wants to take this is forced to eat or not ...
Then as-Syaukani said,
What is forbidden is to bring out some of the fruit, without differentiating much or little.
Then as-Syaukani mentioned that this was in line with the principle of the Shari'a that there were some people who had the right to get a banquet (Haq ad-Dhiyafah), like Ibn Sabil or someone in need.
(Nailul Authar, 8/176).
This explanation applies to take fruit from a private roadside garden. So that we can apply it for trees in public places, which are managed by the government and become the joint property of the Muslims. Based on the information from as-Syaukani, taking the fruit is allowed with the following conditions:
[1] There is no prohibition from the manager to take the fruit.
[2] Only limited to eating on the premises and not being taken out of the area. So that it cannot be harvested by certain parties for sale. Because it means the form of mastering other people's property.
Thus, Allahu a’lam.
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