Islamic Fiqh > Companies and leases > Musaqat (irrigation sharing) > Cancelling musaqat and its cases
Contents
Updated on 25 September 2026 at 6:57 PM
These ten sheets continue the chapter on musaqat, the contract by which an owner entrusts the irrigation and upkeep of his trees to a worker in exchange for a share of the fruit. They examine what the worker obtains when the contract turns out to be defective, then the causes that end the musaqat: expiry of the term, the property being acquired by another, the owner's own act, mutual rescission (iqaala), and legitimate excuses (theft, illness, calamity). The final sheet covers the inclusion of bare land (bayad) in the contract, with Malik's discussion reported in the Mudawwana and the hadith of Khaybar. The positions of the Hanafi, Maliki, Shafi'i and Hanbali schools are cited with their classical references.
The jurists agree that when the musaqat is defective and the worker has labored without knowing of the defect, he is entitled to the wage of the like (ajr al-mithl), even if the tree yields nothing; this distinguishes it from a valid muamala, in which he has nothing if the tree yields nothing.
A detail remains: does the wage of the like reach its full value, or is it capped at the stipulated amount? According to Abu Yusuf, the wage of the like is due there, but estimated by the stipulated amount, not exceeding it; according to Muhammad (al-Shaybani), it is due in full. This disagreement concerns only the case where each party's share is stipulated in the contract: if it is not stipulated, the wage of the like is due in full without disagreement ("Bada'i al-Sana'i" (6/188), "al-Jawhara al-Nira" (4/261), "al-Lubab" (2/14), "al-Hindiyya" (5/278)).
The Malikis, for their part, distinguish three cases for the defective musaqat:
In one case, the wage of the like is due when the worker has passed from the musaqat into a defective hire, or into the sale of the fruit before its ripeness appears. Example: one of the two contracting parties adds beyond the share stipulated in the musaqat, in area or in value. If the increase comes from the orchard owner, he has passed from it into defective hire: it is as if he had hired the worker to work in his orchard against what he gave him in dinars, dirhams or goods, plus a share of its fruit. This is a defective hire, whose sanction is reversion to the wage of the like: the orchard owner recovers from him what he had given, and the worker has nothing of the fruit.
If the increase comes from the worker, he too has passed from it into the sale of the fruit before its ripeness appears: it is as if he had bought from the owner the share stipulated for him in the musaqat, paid in dinars, dirhams or goods, besides the wage of his labor. He is therefore reverted to the wage of his like, he recovers from the orchard owner the surplus, and he has nothing of the fruit.
Second, the musaqat of the like is due when the parties have not left the musaqat itself, but the defect arises from their having concluded it on a gharar (speculative) object or the like: what is then due is the musaqat of the like.
The difference between it and the wage of the like is that the wage of the like attaches to liability (dhimma): in the musaqat, the worker is more entitled to the fruit in case of diminution of value, not in case of total loss; whereas what is returned in mugharasa against the wage of the like, the worker is not entitled to, neither in diminution nor in loss. As for the musaqat of the like, it attaches to the fruit: the worker is more entitled to the fruit than the creditors (ghurama), in loss as in diminution; and likewise what is returned in mugharasa as mugharasa of the like: the worker is entitled to it in loss as in diminution.
The nine cases in which the musaqat of the like is due are:
Likewise, if after the work the parties differ over the share stipulated for the worker, the worker saying: we entered on half, and the orchard owner: we entered on a quarter, neither having made a formal statement: they take oaths, each swearing to his claim while denying his opponent's, and the worker is granted the musaqat of his like; likewise if they contradict each other, and judgment is given for the swearer against the contradictor. If both made formal statements, the word is the worker's with his oath; if the owner alone has the explicit formula, his word prevails, with his oath. But if they differed before the work: they take oaths and the contract is rescinded, whether there is ambiguity or not, and their mutual withdrawal stands as their oaths; contrary to mugharasa, in which there is no oath-taking, but the worker returns the capital, for mugharasa is a revocable, non-binding contract.
This reasoning belongs to the madhhab of Ibn al-Qasim, which is the famous position. It has also been said: the worker has the wage of the like unconditionally; it has been said: the musaqat of the like unconditionally, the view of Ibn al-Majishun and his narration from Malik; it has been said: he has the musaqat of his like provided it does not exceed the share stipulated upon him if the condition favors the orchard owner, and if the condition favors the worker, he has the musaqat of his like provided it is not less than the share stipulated for him ("al-Sharh al-Kabir with the Hashiya of al-Dasuqi" (5/329, 331), "Sharh Mukhtasar Khalil" (6/236, 238), "Tahbir al-Mukhtasar" (4/547, 549), "al-Taj wa-l-Iklil" (4/452, 454), "Mawahib al-Jalil" (7/371, 375)).
The Shafi'is say: when the musaqat is defective in the manner mentioned, the wage of the like is due from the tree owner. Among the forms of defect:
If ripeness has not appeared, the owner also has the choice: if he sells to a third party, it is valid only with the condition of division, and the sale of the worker's share alone is not permitted, for it cannot be divided without dividing the owner's share, thus making the possibility of division depend on dividing another's property. Whether the owner may buy it back is subject to two views. The same applies if the musaqat is rescinded by the worker's death, according to our position on its validity, the heir refusing to work.
If the owner of the property chooses to remain in the musaqat, it is not rescinded, according to those who hold it binding; he asks the judge for permission to spend on the fruit and recovers what he spent. If he cannot reach the judge, he spends intending to recover, having the spending witnessed on condition of recovery, and he recovers what he spent, for he is under compulsion. If he can reach the judge but spends intending to recover without asking him, does he thereby recover? Two views, by analogy with one who discharges a debt without permission. If he spends gratuitously, he recovers nothing, like one who gives charity. The ruling on spending on the fruit after rescission of the contract, when its sale is impossible, is identical to this in both cases ("al-Mughni" (5/235, 236), "al-Kafi" (2/290), "al-Mubdi" (5/51), "Kashshaf al-Qina" (3/631, 632), "Matalib Uli al-Nuha" (3/563)).
The Hanafis say: when the term of the muamala expires and the produce is green unripe grapes, the worker has the choice:
The Shafi'is say: if the term expires while the palm trees bear spathes or fresh dates, the worker has his share, and it falls upon the owner to undertake the cutting of the bunches; according to another view, this obligation falls upon both, the fruit being shared between them. No wage obliges the worker for leaving his share on the tree until the time of ripening, for he has already become entitled to it as ripened fruit by virtue of the contract.
If the fruit ripens before the end of the term, the worker must work the remainder without wage; if the fruit appears only after the term, the worker has nothing. If he is hired for ten years, the ten expire and then the fruit appears, the worker has no right in it, for it occurs after the expiry of the term; if it appears at the end of the ten, the worker owns a share of it, for it occurred before the expiry of the term ("al-Bayan fi madhhab al-Imam al-Shafi'i" (7/258), "Rawdat al-Talibin" (3/775), "Mughni al-Muhtaj" (3/371), "Hashiyat Qalyubi wa-Umayra" (3/155)).
The Hanafis say: if the tree hired under musaqat turns out to be acquired by another and the rightful claimant rescinds the musaqat, it is rescinded. The situation is then examined: if the acquisition took place after the fruit appeared, the worker has his wage of the like from the tree owner; if it took place before the fruit appeared, the worker takes nothing ("Durrar al-Hukkam" (3/515)).
The Malikis say: apparently, if the orchard is acquired after the musaqat contract was concluded, the rightful claimant is given the choice between maintaining the work and rescinding his contract, the defect being manifest: the contracting party is not the owner; he then pays him the wage of his work. And if the orchard is sold and the buyer does not know it is hired under musaqat until after the purchase, he has no right to the option (khiyar), unlike one who buys a house and then learns after the purchase that its seller had leased it for a term before the sale: that is a defect that opens the option to him; if he wishes, he accepts; if he wishes, he returns it ("Hashiyat al-Dasuqi on al-Sharh al-Kabir" (5/326), "Sharh Mukhtasar Khalil" (6/234)).
The Shafi'is say: if the fruit turns out to be acquired by another after the work, for example if the deceased bequeathed the price of the tree hired under musaqat, or the tree turns out acquired, the worker has the wage of the like from the hirer for his work, for he lost his benefits against a corrupt consideration and claims its substitute, like one who hires a man to work in usurped property and he works in ignorance. This applies if he worked immediately in ignorance; if he knows the situation, he has nothing; likewise if the acquisition occurred before the work.
It has been said: no wage, for he is the one who destroyed his own benefit, as if the fruits were lost through a calamity ("Rawdat al-Talibin" (3/783), "Mughni al-Muhtaj" (3/376), "al-Najm al-Wahhaj" (5/313), "al-Dibaj" (2/454)).
The Hanbalis say: if he is hired over a tree and it is sold and turns out acquired after the work, its owner takes it and its fruit, for it is the very property of its master; the worker has no right in its fruit, for he worked on it without its owner's permission, and no wage for that; but he has his wage of the like from the usurper, for the latter is another who employed him, making the wage obligatory, like one who usurps a drawing vessel and hires someone to hammer it into dirhams. If the fruit was ripened in the sun and did not diminish, its owner takes it; if it diminished, its owner has the compensation (arsh) of the diminution, and he claims it from whichever of the two he wishes, the liability settling upon the usurper. If the acquisition occurs after they divided it and ate it, its owner claims the guarantee from whichever of them he wishes: if he guarantees it all, he has recourse against him for it all; [the owner] has recourse for the amount of his share, and the worker guarantees the amount of his share, for the usurper is the cause of the worker's hand intervening, so the guarantee of the whole falls upon him; if he guarantees it all, recourse against the worker is for the amount of his share, the loss having been found in his hand and the guarantee having settled there, and the worker claims from the usurper his wage of the like. Ibn Qudama said: it is possible that the usurper has no recourse against the worker for anything, for he deceived him and therefore claims nothing from him, like one who feeds a person something, saying to him: eat it, it is my food, and it then turns out to be usurped. If the worker guarantees, it is possible that he guarantees only his own share, for he did not take possession of all the fruit: he was only watching over it and protecting it, so its guarantee is not incumbent upon him as long as he has not taken it; and it is possible that he guarantees it all, his hand having been established over the whole in mere watching without right. If he guarantees it all, the worker claims from the usurper the substitute of his share and his wage of the like; if each of the two guarantees what came to him, the worker claims from the usurper only his wage of the like.
If the fruit perishes in its tree or after cutting before division: according to those who hold the worker to be in possession of it through the establishment of his hand over the orchard, the guarantee falls upon him; according to those who hold him to be in possession only through taking his share, the guarantee does not fall upon him and it lies upon the usurper ("al-Mughni" (5/239, 240), "Kashshaf al-Qina" (3/632, 633)).
By the owner's disposal is meant the owner's sale of the orchard hired under musaqat during the term. The Shafi'is say: the owner's sale of the musaqat tree before the fruit emerges is invalid, for the worker holds a right in it, so that it is as if the owner had excepted part of it. After that [the emergence of the fruit], it is valid, and the worker stands toward the buyer as he stood toward the seller; the seller has no right to sell his share of the fruit alone with the condition of division, its division being impossible because of its dispersal ("Rawdat al-Talibin" (3/785), "Mughni al-Muhtaj" (3/376), "al-Najm al-Wahhaj" (5/313)).
Abu Ja'far al-Tabari (may Allah have mercy on him) said: Yunus informed me, from Ibn Wahb, from him: Malik was asked about a man who buys land whose owner had entrusted it years before to a man under musaqat, and the worker says: I have more right to it, and he [the buyer] has no right to expel me. He replied: he has no right to expel him until he has finished his irrigation, unless they agree ("Ikhtilaf al-Fuqaha" (168)).
The Hanafis, the Malikis and the Shafi'is have explicitly ruled that the musaqat is dissolved by iqaala, for it comprises both hire (ijara) and partnership (sharika), two contracts that expressly accept rescission and mutual release ("Bada'i al-Sana'i" (6/184), "Durrar al-Hukkam" (3/516), "Mughni al-Muhtaj" (3/376), "Hashiyat Qalyubi wa-Umayra" (3/162)).
The Malikis say: the worker and the orchard owner may release each other from their mutual rights gratuitously, that is, without either of the two taking anything from the other. If the mutual release concerns something the orchard owner pays to the worker, the apparent ruling of the Mudawwana is absolute prohibition, whether for a named share, like a quarter, or an unnamed one, like a wasq, and whether the release occurs before or after the work. Indeed, if it is against a consideration, it is either a sale of the fruit before its swelling, if the palm fruits, or a consumption of people's wealth unlawfully if it does not fruit: the worker has consumed unlawfully what he took, no profit having returned to his master.
The madhhab is the statement of Ibn Rushd: if the release concerns a named share of the fruit while it is not yet edible, it is permitted, if the two parties agree before the work, for it is a gift from the orchard owner to the worker. As for after the work, Ibn al-Qasim permitted it and Asbagh forbade it, likewise if the fruit has become edible or the share is unnamed, because of the suspicion against the orchard owner of hiring the worker those months for a sixth of the orchard's fruit if the release is at his charge: the musaqat then becomes a ruse between them, and there is a sale of the fruit for work before the appearance of its ripeness.
If the mutual release is against dirhams and the like, there is no explicit text except what is understood from the Mudawwana as prohibition, as al-Dardir says ("al-Sharh al-Kabir with the Hashiya of al-Dasuqi" (5/324, 325), "Tahbir al-Mukhtasar" (4/544), "al-Taj wa-l-Iklil" (4/450), "Mawahib al-Jalil" (7/368), "Sharh Mukhtasar Khalil" (6/233)).
The Shafi'is say: iqaala is valid in the musaqat; the worker has nothing of the fruit if any exists, and the owner is not bound to return what has been cut, even if the fruit perishes by its cutting, by a calamity, or by usurpation or the like; the worker must complete, even if he suffers harm by it, and he has nothing. If part of the fruit perishes thereby, the worker is given the choice: if he rescinds, he has nothing; if he ratifies, he completes the work and has his share of what remains. The contract was not dissolved in total loss because nothing remained whose survival was hoped for, each party ceased to trust the other's hand, and the ripeness of the fruit appeared: he then has its estimation (khars) and the determination of the other's share, as with zakat, and both have division after the time of cutting, if separation is retained; each may sell his share to the other and to a third party. Their divergences concern the amount of stipulated fruit, the restitution, the loss and the amount of the hired tree; as in mugharasa: cross oath-taking occurs in the first case, and the worker's word is accepted in the others ("Mughni al-Muhtaj" (3/376), "Hashiyat Qalyubi wa-Umayra" (3/162)).
The jurists differed over whether the musaqat may be rescinded for an excuse. The Hanafis and Malikis hold in principle that rescission for an excuse is permitted; the Shafi'is and Hanbalis prevent it. The first excuse examined is the case of the thieving worker, known for theft.
The Hanafis make it an excuse: the musaqat is rescinded for certain excuses, as hire is, namely when the worker is a thief or known for theft and theft is feared for the harvests, the breaking of branches and their theft; the tree owner then has the right to rescind the musaqat, to avert harm from the owner, theft entailing damage against him ("Bada'i al-Sana'i" (6/184), "al-Hidaya" (4/61), "al-Ikhtiyar" (3/100), "al-Jawhara al-Nira" (4/263), "al-Lubab" (2/15), "Mukhtasar al-Wiqaya" (2/199), "Durrar al-Hukkam" (3/515, 516)).
The Malikis say: whoever entrusts his orchard in musaqat to someone, or leases his house, then finds him a thief to be feared, for the fruit or the crop in the first case, for the doors for example in the second: the knot of the contract, in the musaqat as in the lease, is not undone for that; it belongs to the orchard or house owner to take precautions against him. If he cannot guard against him, the judge leases the house over him and gives the orchard in musaqat over him. If the share agreed with the second worker is less or more, the surplus belongs to him and the deficit is charged to him.
The musaqat is not rescinded if the worker is a sinner or a wrongdoer who is not prevented; precautions are taken against him, the musaqat contract having become binding. The worker's being a thief is wickedness (fisq) that does not entail rescission of the contract, just as if he sinned without stealing; it does not make irrigation impossible nor prevent watching over the fruit, it only entails harm without preventing the enjoyment of benefits, so the watering is not rescinded for it, especially if he is a wrongdoer in the midst of his muamala. Likewise, one who leases a house to a man and finds him undermining the walls and stealing may not rescind the lease; he is told: take precautions against him; the same holds for the musaqat ("al-Ishraf" (3/187) no. (1034), "al-Sharh al-Kabir with the Hashiya of al-Dasuqi" (5/332), "Tahbir al-Mukhtasar" (4/549), "al-Taj wa-l-Iklil" (4/454), "Mawahib al-Jalil" (7/376), "Sharh Mukhtasar Khalil" (6/238)).
The Shafi'is say: if the owner alleges theft or treachery against the worker concerning the fruit or the spathe, it is not accepted until he specifies the amount of what he betrayed and formulates his claim; if he formulates it and the worker denies it, the word is the worker's with his oath.
If the worker's treachery in the musaqat is established by his confession, by evidence, or by a reiterated oath (yamin marduda), a supervisor is attached to him until the work is completed, and his hand is not removed: the work is a right upon him and can be exacted from him in this manner, thus combining the two rights, besides the supervisor's wage. If the treachery is not established but the owner suspects him, a supervisor is attached to him and his wage is then upon the owner. If he does not guard by means of the supervisor, his hand is removed entirely and one is hired at his expense, from the worker's property, to complete the work, exacting the work owed by him and the ability to compel him passing through this route ("Rawdat al-Talibin" (3/782), "Mughni al-Muhtaj" (3/376), "al-Najm al-Wahhaj" (5/312), "al-Dibaj" (2/454)).
The Hanbalis say: the worker is a trustee (amin); the word is his in what he alleges of loss as in what is imputed to him of treachery, for the owner entrusted him in confidence with delivering his wealth to him: he is like the investing partner (mudarib). If he is accused, he swears; if his treachery is established by confession, by evidence, or by his withdrawal from the dispute, a supervisor is attached to him; if guarding him is not possible, one is hired from his property to do his work ("al-Mughni" (5/236, 237)).
The jurists differed over the worker in musaqat who becomes unable to work through illness, old age, travel or otherwise: is the musaqat rescinded for that? The Hanafis hold that it is rescinded for the excuse of illness and incapacity: the musaqat is rescinded if the worker falls ill before the fruit's ripening and is unable to work, for he would suffer harm if obliged to hire someone at his expense; the restriction to before ripening is because thereafter the muamala has ended, rescission being impossible, and even if he wished to stop working, that is not possible for him, in the sound view. Likewise, if the worker wishes to travel and rescind the musaqat, it is rescinded ("al-Hidaya" (4/61), "al-Ikhtiyar" (3/100), "al-Jawhara al-Nira" (4/263), "al-Lubab" (2/15), "Mukhtasar al-Wiqaya" (2/199), "Durrar al-Hukkam" (3/515, 516)).
The majority of jurists, Malikis, Shafi'is and Hanbalis, hold in principle that it is not rescinded for that, with distinctions among them.
The Malikis say: if the worker becomes unable to perform his work, through an impediment that befell him or through absence, such as travel, his incapacity is either after the appearance of the fruit's ripeness and the permissibility of its sale, or before it. If it is after the appearance of ripeness, his share of the fruit is sold and one is hired with its price to complete the work: if there is surplus, it belongs to him; if there is deficit, it is pursued against him. If the incapacity is before the appearance of ripeness: if someone is found to replace him, no problem; otherwise, the worker has nothing, his food and service are annulled, and it is handed over to his master gratuitously, for nothing; it is not permitted to pay him a price for his share of the fruit, for that would be selling the fruit before the appearance of its ripeness.
Al-Lakhmi (may Allah have mercy on him) said: it is permitted for the worker to have another irrigate, whether he is incapacitated or not, for the work rests upon his liability, and it is permitted for him to entrust it to a trustee, even one lesser than him in reliability. If he becomes incapacitated and finds no one to take it except for the like of the first share, the property owner has the choice between accepting that irrigation or taking it back, being then more entitled to what he has irrigated by another. End of quote.
If the worker becomes incapacitated before ripeness and finds no trustee, the orchard owner says: I hire someone to perform the whole work and sell what has come to him of the fruit, and I exact what you delivered; if there is surplus, it is his; if there is deficit, it is pursued against him. This should therefore be granted to him, like the statement of Ibn al-Qasim concerning the two mugharasa partners when one of them becomes incapacitated after the work and before the ripening of the crop: it is said to his partner: work; when the crop has dried and you have exacted your right, what remains belongs to him, and what falls short you pursue against him, for the work was binding upon him; the same applies here ("al-Tabsira" (10/4709), "Sharh Mayyara" (2/192, 194), "al-Dhakhira" (6/109), "al-Sharh al-Kabir with the Hashiya of al-Dasuqi" (5/326), "Tahbir al-Mukhtasar" (4/545), "al-Taj wa-l-Iklil" (4/451), "al-Bahja fi Sharh al-Tuhfa" (2/322), "Minah al-Jalil" (7/423)).
The Shafi'is say: if the worker flees, falls ill or is otherwise incapacitated before completing the work, and the owner completes it himself or with his wealth, volunteering the labor or the expense in the worker's place, the worker's entitlement remains, like a third party who gratuitously pays a debt. The same applies if he volunteers by his presence, or by performing the whole work; and likewise if a third party does it gratuitously in the worker's place, whether the owner knows him or not; the owner is not bound to accept the volunteer.
If no volunteer is found, the judge hires over him, after the matter has been referred to him and the musaqat and the worker's flight have been established, his pursuit proving impossible as though his whereabouts were unknown, someone to complete the work, from the worker's property, even if it is real estate. If he has no property: if one is after the appearance of ripeness, the worker's share is sold in whole or in part as needed, and one is hired with its price; if one is before the appearance of ripeness, whether the fruit has appeared or not, one borrows on his behalf from the owner, a third party, or the public treasury, if no one is found to work for a wage deferred until the fruit's ripening, the sale of part of it alone being impossible, it requiring the condition of division, impossible because of the dispersal. One hires with what was borrowed, and the worker repays after the impediment ceases, or the judge repays it from his share of the fruit after the appearance of ripeness; if the work is obtained thereby, borrowing becomes unnecessary and the purpose is achieved.
If the judge hires the owner himself or permits him to spend, and he spends seeking recovery, he recovers as if he had borrowed from him; whenever borrowing and the like become impossible before the fruit's emergence, and after the appearance of its ripeness, the owner does not rescind because of the partnership. The fruit is not sold with the condition of division, its division being impossible because of its dispersal, unless the owner consents to the sale of the whole: the sale is then valid. If that occurs before the fruit's emergence, he has rescission, and the worker has the wage of what he worked. The judge likewise hires in the same manner if the worker is present and refuses to work.
If the owner cannot return to the judge, either because he is beyond a day's ride, or present without obtaining what he seeks, he witnesses the work himself, or his spending if he wishes to recover what he works or spends; witnessing during an excuse has the same ruling, and he makes explicit in his witnessing the intention of recovery. If he does not witness as mentioned, he has no recovery; if witnessing is impossible for him, he has none either, for it is a rare excuse.
Al-Khatib al-Shirbini (may Allah have mercy on him) said: as soon as he spends and witnesses, then the owner and the worker differ over the amount of the spending, the imam has two possible assessments concerning whichever of the two is authenticated; al-Subki preferred the owner's word. The two shaykhs did not speak explicitly on this issue, and their discussion of the camels' flight entails authenticating the worker's word, for they preferred accepting the camel-driver's word, reasoning that the spender did not rely on entrustment coming from the judge; so it is the same here ("Mughni al-Muhtaj" (3/374, 375), "Rawdat al-Talibin" (3/778), "Nihayat al-Muhtaj" (5/295), "al-Najm al-Wahhaj" (5/311), "al-Dibaj" (2/452, 453)).
The Hanbalis say: if the worker becomes unable to work, like his weakness joined to his trustworthiness, a strong and trustworthy man is attached to him and his hand is not removed, for the work is deserved by him and his hand's continuance causes no harm. If the worker is entirely incapacitated, someone works in his place and the wage is upon him in both cases, for he owes the completion of the work, and this is part of it ("al-Kafi" (2/295), "Kashshaf al-Qina" (3/635), "Matalib Uli al-Nuha" (3/751)).
The jurists differed when the fruit or part of it is struck by a calamity: is the musaqat rescinded or not?
Ibn Abd al-Barr (may Allah have mercy on him) said: if part of the orchard is struck by the calamity, what is struck of it falls away from the contract if no fruit can be hoped from it; and what is cut off from the palm no longer requires its watering; he must water what has not been cut off until it is cut off, even if another cut it before him. If the whole orchard is struck, the musaqat is rescinded therein. If a third of the orchard or more is struck, two narrations are reported from Malik: according to the first, the worker has the choice between rescinding the musaqat and remaining upon it; according to the second, the musaqat remains binding upon both, unless the calamity has destroyed a specific piece of palm trees and trees: the musaqat is then rescinded for it alone, not for the rest. If the calamity destroys less than a third of the orchard, the musaqat is valid and binding; if the well collapses, the musaqat is rescinded, unless the worker intends to spend from his property on repairing the well, the charge falling upon his watering duty, and the orchard owner takes a pledge from the fruit for what he spent, that pledge being his ("al-Kafi" (383)).
As for the Shafi'is, al-Nawawi (may Allah have mercy on him) said: al-Mutawalli transmitted that if the trees do not fruit at all, or the fruits perish through a calamity or usurpation, it falls upon the worker to complete the work, even if he suffers harm by it, just as the worker in mugharasa is charged with the winnowing, even if loss appears and he gains only fatigue. This is sounder than what al-Baghawi mentioned: that if all the fruits perish through a calamity, the contract is rescinded, unless [the worker] intends, after the completion of the work and the full formation of the fruits, [to continue]. He said: if part of them perishes, the worker has the choice between rescinding the contract and obtaining nothing, or ratifying it, completing the work and taking his share ("Rawdat al-Talibin" (3/782)).
The Malikis say that it is permitted to include the bare land of trees (bayad) or the bare land of crops in the musaqat contract. Bare land is land devoid of tree or crop, called white because its soil shines by day in the sunlight and by night in the light of the stars; when it is covered by the crop or the tree, it is called black (sawad). The bare land that admits the musaqat may therefore be included in the musaqat of what has been mentioned, under three conditions:
The mentioned bare land is abandoned to the worker if the two parties remain silent at the musaqat contract concerning it, that is, it does not enter the musaqat according to its preceding conditions and is not assigned to its owner: it then belongs to the worker alone ("Hashiyat al-Sawi with al-Sharh al-Saghir" (8/449, 450)).
The Mudawwana reports (I say): what do you see if the orchard owner says: take the palm trees in musaqat on condition that you sow the bare land between us, the seed coming from you, O worker? He replied: Malik said: yes, this is permitted; and Malik said: I prefer that the bare land be abandoned to the worker. (I say): why did Malik permit it? He replied: because of the sunna reported concerning Khaybar, that the Prophet (peace and blessings of Allah be upon him) contracted the black and the white on half. Malik said concerning Khaybar, and I said to him: was there bare land when he contracted it in musaqat? He replied: yes, and it was slight; that is why Malik permitted it, if it is stipulated upon the worker to sow the bare land, the seed coming from the worker, the work being on condition that what comes from the bare land be between them. Malik said: I prefer that it be abandoned.
(I say): what do you see if they stipulate that the seed the worker sows in the bare land come from both, half from the palm owner and half from the worker, the work being entirely the worker's: is that permitted in Malik's view? He said: that is not permitted. (I say): and is it not permitted either that part of the seed come from the palm owner? He said: yes, it is not permitted. (I say): why did Malik disapprove of it? He said: because it is an increase the worker added for himself. (I say): what do you see if the worker stipulates upon the orchard owner, for the palm trees, the ploughing of the bare land, the seed and the work remaining the worker's charge? He said: Malik told us: when the work and the expense are both upon the entrant, there is no harm in that. He said: this indicates the answer to your question: it is not valid for the worker to stipulate upon the palm owner the ploughing of the bare land, even if they made the seed between them. (I say): what do you see if he takes the palm trees in muamala on condition that the bare land be for the worker? He said: Malik said: this I permit.
(I say): what do you see if a man entrusts a crop in musaqat and in the middle of the crop there is white land belonging to the crop owner, slight and subsidiary to it, and the worker stipulates that land for himself in order to sow it? He said: I heard nothing from Malik on it, and I see no harm in it, like the palm trees and the bare land when the land within the land holding the crop is subsidiary to the crop. (I say): what do you see if I hand over to a man palm trees in musaqat for five years, the palm trees bearing subsidiary bare land, on condition that the bare land be the first year the worker's, to sow for himself, then the bare land return to the palm owner who works it for himself, the musaqat bearing, for the remaining four years, on the palm trees alone? He said: this is not permitted with me, for it is a matter of chance (khatr). (I say): likewise if a man takes two orchards in muamala on condition of working both orchards entirely the first year, then returning one of the orchards to its owner the second year and working the other alone the second year. He said: this too is not permitted, and it resembles your first question about the palm trees and the bare land, both questions being a matter of chance. (I say): and this is Malik's statement. He said: I did not hear this from Malik, but it is my opinion ("al-Mudawwana al-Kubra" (12/20, 21)).
Among the proofs of the permissibility of including bare land in the musaqat contract is the hadith narrated by al-Bukhari from Ibn Umar (may Allah be pleased with them both):
The Prophet (peace and blessings of Allah be upon him) concluded with Khaybar a contract for half of what came out of it of fruit or crop, and he used to give his wives one hundred wasq: eighty wasq of dates and twenty wasq of barley. Then Umar divided Khaybar and gave the Prophet's wives (peace and blessings of Allah be upon him) the choice: either a share of water and land be allotted to them, or the contract continue for them; some of them chose the land, others the wasq, and Aisha and Hafsa were among those who chose the land and the water.Narrated by Bukhari (2203) and Muslim (1551)
His saying "he used to give his wives one hundred wasq: eighty wasq of dates and twenty wasq of barley" proves that Khaybar's bare land was subsidiary to its planted land: see that the barley is a fifth and the dates four fifths; it is therefore correct that it enter the musaqat with the condition, but on condition of the matching of the shares, as has preceded ("al-Mufhim lima ashkala min talkhis Sahih Muslim" (4/418), "al-Muwatta" (2/708), "al-Istidhkar" (7/57), "Sharh al-Zarqani" (3/468)).
As for the Shafi'is, the author of the "Bayan" said: when he possesses palm trees or a vine, and between the palm and the vine there is white land such that the palm trees and the vine cannot be irrigated except by irrigating the white land separating them, it is examined: if the white land is slight and the palm trees more numerous than it, it is permitted to hire him in musaqat over the palm trees and in mugharasa over the land separating them, by virtue of what Ibn Umar narrated:
The Prophet (peace and blessings of Allah be upon him) concluded a contract with the people of Khaybar for half of what came out of it of fruit and crop.Narrated by Bukhari (2203) and Muslim (1551)
and because need calls for permitting this mugharasa, the palm trees not being able to be irrigated except by irrigating the land separating them. If we said that mugharasa over it is not permitted, the worker would be bound to a labor for which he obtains no consideration. This established: if he says: I hire you in musaqat over the palm or the vine, and in mugharasa over the land separating them, for half, that is permitted. If he says: I contract you in muamala over the palm and the land for half, that is permitted, for the word muamala embraces both. If he says: I hire you in musaqat over the palm and the land for half, it is not valid for the land, the musaqat not bearing upon bare land; does the musaqat over the palm then become invalid? Two views, according to the separation of the transaction.
If he says: I hire you in musaqat over the palm for a third of its fruit, and in mugharasa over the land separating them for half of what comes out of it, is that valid? Two views, transmitted by the shaykh Abu Ishaq: according to the first, it is not valid, mugharasa being permitted here only as subsidiary to the palm, and if they are differentiated in the consideration, neither follows the other; according to the second, it is valid, and it is the sound view, which the shaykh Abu Hamid did not mention in the "Ta'liq", nor Ibn al-Sabbagh and others, like one who hires him in musaqat over an orchard containing several varieties of fruit and fixes for each variety a share, differentiating the shares.
If he concludes the mugharasa and then concludes the musaqat, the mugharasa is not valid, for it is permitted only as subsidiary to the musaqat and cannot precede it. If he concludes the musaqat over the palm and then concludes the mugharasa over the land, two views: according to the first, the mugharasa is not valid, for it is permitted only as subsidiary to the musaqat over the palm, and if he singles it out by contract it is no longer valid, like the sale of the fruit before the appearance of its ripeness without the condition of division, separate from the tree; according to the second, it is valid, for we permitted the mugharasa only because the palm trees cannot be irrigated except by irrigating the land separating them, and this meaning subsists even if the mugharasa is concluded after the musaqat.
If the bare land lying between the palm trees exceeds the palm trees, is the mugharasa over it valid as subsidiary to the palm trees? Two views: according to the first, it is valid, by virtue of the meaning mentioned, namely that the palm trees cannot be irrigated except by irrigating the land separating them; according to the second, it is not valid, mugharasa being valid only as subsidiary to the palm, and the much does not follow the little; it is the little that follows the much. This established, in every case in which we validated the mugharasa, the seed comes from the land owner and the work from the worker, like the palm in the musaqat. This will be explained in detail with the Shafi'is under mugharasa.
The Hanbalis say: if the land bears trees and between them there is bare land, and one hires him in musaqat over the trees and in mugharasa over the land between the trees, that is permitted, whether the bare land be slight or abundant; Ahmad stated it explicitly and said: the Prophet (peace and blessings of Allah be upon him) did indeed hand over Khaybar on this basis. Ibn Qudama (may Allah have mercy on him) said: everyone who permitted mugharasa over standalone land said the same. The wordings of the contract run as follows:
The companions of al-Shafi'i say: it is not valid, the musaqat not bearing upon the land, and it is valid over the palm alone; it has been said: one builds on the separation of the transaction. Our [Hanbali] proof: he expressed a contract by the term of a contract that shares the meaning famous for it in derivation, so it is valid, as if he had expressed it by the word of sale in the undisputed case; and because what is intended is the meaning, known from the context of its circumstances; likewise if he says concerning the white land: I hire you in musaqat over this land for half of what is sown in it.
If he says: I hire you in musaqat over the tree for half without mentioning the land, the latter does not enter the contract and the worker has no right to sow; al-Shafi'i said so. Malik and Abu Yusuf said: the entrant has the sowing of the bare land; if they stipulate between themselves that it be between them, it is permitted. If the land owner stipulates that he himself sow the bare land, it is not valid, for the entrant irrigates for the land owner: it would be an increase he added upon him. Our proof: this was not embraced by the contract, so it did not enter it, as if it were standalone land.
If he concludes a mugharasa over land bearing a few slight trees, it is not permitted for the worker to stipulate their fruit; al-Shafi'i and Ibn al-Mundhir said so, and Malik permitted it if the tree equals a third or less, for it is slight and enters as subsidiary. Our proof: that would be stipulating the whole of the fruit, which is not permitted, as if the tree exceeded a third.
Chapter: if he leases him bare land in mugharasa and hires him in musaqat over the tree within it, that is permitted, for they are two contracts, each of which can be singled out, so their combination is permitted, like sale and hire; it is possible that it is not permitted, according to the view that forbids their combination in origin; the first view is more likely, unless they do so as a legal device for buying the fruit before its existence or before the appearance of its ripeness: it is then not permitted, whether they combine the two contracts or conclude one after the other, according to what we mentioned in nullifying the devices ("al-Mughni" (5/243, 244), "al-Mubdi" (5/57)).