Islamic Fiqh > Companies and leases > Musaqat (irrigation sharing) > The first pillar: the wording, offer and acceptance
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
Musaqat is the contract by which the owner of trees, an orchard or a palm grove entrusts their watering and upkeep to a worker in exchange for an agreed share of the fruit. The sheets below set out its five pillars and its conditions according to the four Sunni schools: Hanafi, Maliki, Shafi'i and Hanbali. The translation preserves the full substance: exact school positions, arguments, takhrij and classical references.
The Hanafis, the Malikis, the Shafi'is on the sound view and the Hanbalis agree that musaqat is concluded only through an offer and an acceptance. The Hanafis make offer and acceptance the pillar of musaqat as of muzaraa: if the owner says to the worker, "I give you these trees in musaqat; you will take such-and-such a share of their fruit," and he replies, "I accept," "I am content," or any equivalent words, the contract is concluded between them. Without offer and acceptance it is not formed: if the wind carries one man's seed into another's plot and seedlings grow from it, the seedlings belong to the owner of the land, because the seed has no value; likewise if a peach pit falls into another's plot and sprouts, the seedling belongs to the owner of the plot, because the pit's flesh has gone and it has no value after that ("Badai al-Sanai" (6/176), "Durr al-Hukkam, commentary on Majallat al-Ahkam" (3/508)).
Among the Malikis, Sahnun (may Allah have mercy on him) allows conclusion with the formula "I have watered" (saqaytu) or "I have worked" (amaltu), both being contracts on benefits. Ibn al-Qasim (may Allah have mercy on him) validates it only with "I have watered" exclusively, not with a wording of hiring, partnership or sale, as a starting point like marriage; it suffices, secondly, for the other to say, "I accept" or "I am content."
Ibn al-Qasim's proof that it is not valid without "I have watered" is that musaqat is an origin (asl) in itself, contracted in the reverse direction, to the point that saying "I hire you to tend this orchard or water it for half its fruit" is not permitted in his madhhab, just as hiring is not validated with the wording of musaqat, as Ibn Rushd said; and Ibn al-Qasim's statement is sounder, because musaqat and hiring are two origins with separate rulings: neither is concluded with the other's term. Corruption in musaqat annihilates the worker's labor, while in hiring he receives an equivalent wage: they are thus two distinct doors, and one is not designated by the other's term ("al-Muqaddimat al-Mumahhada" (2/552), "al-Dhakhira" (6/104, 105), "al-Taj wa-l-Iklil" (4/443), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/317), "Tahbir al-Mukhtasar" (4/537), "Sharh Mukhtasar Khalil" (6/229), "Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/436)).
The other view: it is valid, because of the resemblance between the two doors and because each wording can carry the meaning of the other; the dispute therefore comes down to considering the term or the meaning. "I have entrusted you with watering these palms for such-and-such a share, as a wage for you" is unobjectionable, the musaqat wording having come first. This is if he intended musaqat through the hiring formula; if he intended hiring itself, then, if the fruit has not emerged, it is not permitted, since the wage must be in liability or existing and known, whereas here it is unknown; if the fruit has emerged and its soundness is apparent, it is permitted, whether he stipulated the fruit of a specific palm or a common share; if the soundness is not apparent: stipulating the fruit of a specific palm is permitted on condition of cutting, as is stipulating all the fruit for the worker, but a common share without cutting is not permitted, as passed in sale.
For the Shafi'is, the formula is: "I have entrusted you with watering these palms or this vine for such-and-such a share of their fruit, such as half," for that is the designated object and it is the most explicit wording, the mother of the chapter; or "I have handed it to you to tend," "work in my palm grove," "tend my palm grove for such-and-such," because these render its meaning; the three can be metonymic or literal, and the vine is like the palm. Mention of the compensation is necessary: without it the contract is invalid; entitlement to the wage has two aspects as in qirad, both amounting to absence of right.
If he contracted with a hiring formula, "I hire you to tend my palms for such-and-such a share of their fruit," it is not valid on the soundest view, because the hiring term is explicit for another contract: if it can be executed in its place, it is executed; otherwise the hiring is defective. On the other aspect it is valid, because of the resemblance between the two doors. The dispute thus rests on considering the term or the meaning, and verbal acceptance from a speaking person is required, since it is a binding contract like hiring; it is valid through the gesture of a mute who makes himself understood, or through writing. Detailing the works is not required in the contract: the absolute expression is interpreted, in each domain, by the dominant custom of the work, the reference in such a case being to custom if both parties know it; if both are ignorant of it, or one of them, or if no custom exists, detailing becomes obligatory ("Rawdat al-Talibin" (3/775, 776), "al-Bayan" (7/263), "Mughni al-Muhtaj" (3/371, 372), "Nihayat al-Muhtaj" (5/291, 292), "al-Najm al-Wahhaj" (5/306, 307), "Kanz al-Raghibin" (3/155, 156)).
The Hanbalis: musaqat is valid by its true wording, and by that of the muamala (transaction), based on the Prophet's words (peace and blessings of Allah be upon him) in the hadith:
He contracted with the people of Khaybar for half of what it produced.Narrated by Bukhari (2203) and Muslim (1551)
It is also valid with any term conveying its meaning, such as: "I have pollinated your palms," "work in my orchard until its fruit matures," "tend my palms," "smoke them," "water them and you will have such-and-such," "I have handed it to you to tend for such-and-such a share of its fruit," and the like: the intent is the meaning, so any significant term works, as in sale. Musaqat, like muzaraa, is valid with a hiring formula according to one of two views, which is the madhhab, because the term conveys the meaning and the contract is concluded by it as by the other accepted wordings. The second view: no, and it is Abu al-Khattab's choice, since hiring requires a known compensation and a binding character that musaqat lacks; the first is the closer analogy, for what we have said.
Ahmad ruled, in the narration of a group, regarding one who says, "I rent you this land for a third of what it produces," that it is valid; it is a muzaraa with a hiring formula, as Abu al-Khattab mentioned; the meaning of his words is "I contracted muzaraa with you on it for a third," muzaraa being expressed through hiring metaphorically, as a brave man is called a lion; hence the Prophet's prohibition (peace be upon him) of a third or a quarter applies only to true hiring, not when hiring is intended to mean muzaraa ("al-Mughni" (5/231), "al-Sharh al-Kabir" (5/558), "Majmu al-Fatawa" (25/62), "al-Mubdi" (5/47), "al-Insaf" (5/467, 468), "Kashshaf al-Qina" (3/625, 626, 631), "Sharh Muntaha al-Iradat" (3/603, 604), "Matalib Uli al-Nuha" (3/559)).
Most Hanbalis hold it to be a hiring (ijara), since it is mentioned by its wording: it is a true hiring in which the conditions of hiring apply. Renting land for known food, from its produce or from elsewhere, is valid: renting it for a year to plant wheat against a qafiz of wheat or barley, as if renting it for known dirhams. According to Imam Ahmad, hiring for a portion of what the land produces is not valid; it is also said to be disliked (makruh). Musaqat is valid by mere conduct (muata), and likewise acceptance: musaqat and muzaraa do not require verbal acceptance; beginning the work suffices as acceptance, as with the agent ("al-Mughni" (5/231), "al-Sharh al-Kabir" (5/558), "Majmu al-Fatawa" (25/62), "al-Mubdi" (5/47), "al-Insaf" (5/467, 468), "Kashshaf al-Qina" (3/625, 626, 631), "Sharh Muntaha al-Iradat" (3/603, 604), "Matalib Uli al-Nuha" (3/559)).
The jurists discussed whether the musaqat worker may subcontract the watering to another without the owner's permission. The Malikis and the Shafi'is allow it if the worker is trustworthy (amin), even if less so than himself; but not if he is not trustworthy, even if the first resembles him in that defect, since the orchard owner may have preferred the first for a reason absent in the second, as the Malikis state. This distinguishes him from the qirad worker, who may not entrust the capital to another mudarib even if trustworthy, or he guarantees; the difference is that qirad money goes away from its owner, while the orchard does not go away from him.
The difference between musaqat, where the worker may subcontract, and mudaraba, where he may not, is that the worker's act in mudaraba is an act upon the owner's property, the contract not being binding, so he has not been granted the faculty of disposing of it; whereas his act in musaqat is an act upon himself, the contract being binding, and he has thus been granted the faculty of delegating within his own act. Subcontracting is at an equal or lesser share: if he stipulates more, such as assigning another two-thirds when the owner stipulated half for him, it is not permitted among the Shafi'is, since he does not own the increase. Among the Malikis, on the famous view which is Malik's, it is valid and the increase is acquired: against him if the share he fixed is greater, for him if the share stipulated for the second worker is less. According to the view that the contract does not bind by mere words but belongs to the revocable contracts, it is not valid ("al-Mudawwana al-Kubra" (12/8), "al-Sharh al-Kabir" (5/325), "Mawahib al-Jalil" (7/369), "al-Taj wa-l-Iklil" (4/451), "Tahbir al-Mukhtasar" (4/545), "Sharh Mukhtasar Khalil" (6/234), "al-Hawi al-Kabir" (7/363)).
The Hanafis and the Hanbalis do not allow the musaqi to subcontract: the Hanafis say that assigning it to another establishes a partnership in another's property without his permission, which is invalid. But if the owner expressly permits it, or says to him, "act by your judgment," he may then assign it to another. If he did not say so and the worker assigns the tending to another who performs it and brings out the fruit: the fruit belongs to the palm owner, with no wage for the first worker, since his right depended on the stipulated condition of work and he did not perform the work himself, nor is it valid through another since his contract was void; the second worker has, against the first, the wage of his day's work, because he worked at his command. If the fruit perishes in the second worker's hand without his act, while the clusters are still on the palms, there is no guarantee on either of them, no usurpation having occurred, which would be ousting the owner's hand.
If the fruit perishes through an act of his that contradicts the first worker's instruction: the guarantee falls on the second worker alone and not the first, because the contradiction severed the attribution of his act to the first, while the property remains destroyed though it was under its owner's care. If it perishes through his act without contradicting the first's instruction: the palm owner may claim the guarantee from whichever of the two he wishes; if he chooses the first, nothing reverts to the second, who acted at his command; if he chooses the second, recourse returns against the first, who misled him in this contract, by way of guaranteeing against loss, which is the guarantee of safety. This is when the owner did not say "act by your judgment"; if he said it while stipulating half, and the worker assigns another for a third of the produce, it is permitted for what precedes; half of the fruit goes to the palm owner and a sixth to the first worker, because the third condition concerns his own share only, the work being obligatory on him, so the sixth necessarily remains for him. Muhammad (may Allah have mercy on him) mentioned in "al-Asl": if he was not told "act by your judgment" and each of the two stipulates a known thing, both contracts are defective, with no guarantee on the first worker ("Badai al-Sanai" (6/187, 188), "Hashiyat Ibn Abidin" (8/337), "Durr al-Hukkam" (3/508)).
The Hanbalis: Ibn Qudama (may Allah have mercy on him) writes that if a man contracts a musaqat or a muzaraa and the worker assigns another to work the land and trees, that is not permitted; the same was said by Abu Yusuf and Abu Thawr, while Malik allowed it if a trustworthy man is brought. Our argument: he is a worker on property for a share of its growth, so he may not delegate in it, like the mudarib; all the more since he was only permitted to work himself. However, one who has rented land may contract muzaraa on it with another, its benefits having become his due: he owns the muzaraa on it like the owner, the rent being owed by the lessee and not the sub-farmer, as we said regarding kharaj ("al-Mughni" (5/238), "al-Mubdi" (5/54)).
Likewise, one who holds kharaj land may contract muzaraa on it, like the lessee; likewise the beneficiary of a waqf may farm it and water its trees, for he is either owner of the substance itself or in the position of the owner; no disagreement is known among those who permit musaqat and muzaraa, and Allah knows best ("al-Mughni" (5/238), "al-Mubdi" (5/54)).
The majority of the jurists of the four schools hold that renting trees for a known wage in order to take their fruit is invalid, because it amounts to selling the fruit before its soundness appears, which is prohibited: these are objects sold before existing. The fruit is an object (ayn) whose acquisition cannot pass through a contract of hire: its sale becomes permissible once it exists, whereas hire acquires only the equivalent of its wage in what would not be permissible to sell after existing. Moreover, the locus of hire is the benefit of use, an attribute that does not subsist by itself, unlike the fruit, which subsists by itself like the tree: just as the tree cannot be acquired by a contract of hire, neither can the fruit. The lessor further binds himself to what he has no power to preserve: a calamity may strike the fruit without mankind being able to prevent it; the same applies to a sheep's milk, wool, fat and offspring, all objects whose sale is permitted but not their acquisition by hire.
Ibn Muflih and al-Mardawi (may Allah have mercy on them both) report that it is not permitted to rent land bearing trees: Ahmad said, "I fear he has rented trees that bore no fruit"; Abu Ubayd mentioned its prohibition by consensus ("al-Mubdi" (5/57), "al-Insaf" (5/482), "al-Mabsut" (16/33), "Badai al-Sanai" (4/175), "al-Ikhtiyar" (3/100), "al-Ashbah wa-l-Nazair" (269), "Hashiyat Ibn Abidin" (6/292), "al-Hindiyya" (4/442), "Kifayat al-Talib al-Rabbani" (2/247), "Manh al-Jalil" (7/496), "al-Wasit" (4/158), "Mughni al-Muhtaj" (3/364), "al-Furu" (4/314)).
Shaykh al-Islam Ibn Taymiyya, Ibn al-Qayyim and Taqi al-Din al-Subki among the Shafi'is validate renting trees for their fruit. Their proof is what Hammad ibn Salama narrated, from Hisham ibn Urwa, from his father:
Usayd ibn Hudayr died owing a debt of four thousand dirhams. His land was sold, and Omar said: "I will not leave my brother's sons destitute." He returned the land to them and sold its fruit to the creditors over four years, for four thousand, a thousand each year.Narrated by Ibn Asakir in Tarikh Dimashq (9/94)
Ibn al-Qayyim (may Allah have mercy on him) said: "The twelfth example: renting trees is not permitted, for their purpose is the fruit, which is like selling it before it appears." The reply: the device for its validity is to rent the land and conclude musaqat on the trees for a known share. Shaykh al-Islam (may Allah have mercy on him) said: "That is not needed; the correct view is that renting trees is permitted, as Omar ibn al-Khattab did with Usayd ibn Hudayr's garden: he rented it out for years and settled the debt."
Renting land for its fruit is like renting it for its crop: the renter tends the tree by watering, upkeep and propping the vine until the fruit is obtained, just as he tends the land by plowing, watering and sowing until the crop is obtained. If the difference is objected, namely that the crop comes from the seed, the renter's property, while the fruit comes from the tree, the lessor's property, the answer has four aspects. First, it affects neither the validity nor the invalidity of the contract: it is a difference without effect. Second, the objection collapses with renting land for its clover and herbage that Allah grows without the renter's seed, which is like the tree's fruit. Third, the fruit is obtained only through watering, service and care of the tree: it is therefore generated by the renter's work and by the tree, and the renter has effort and labor in its production. Fourth, the generation of the crop does not come from the seed alone but from the seed, the soil, the water and the air: the crop derives from the soil, the lessor's property, just as the fruit derives from the tree; the seed in the ground stands in place of the tree's watering; the one deposits in the land an inert object, the other deposits in the tree a fluid object, then the fruit is obtained from that tree, the renter's water and his work, just as the crop is obtained from that land, the renter's seed and his work: this is among the soundest analogies in favor of the land.
From this it is clear that the Companions are the most learned of the nation and the most knowledgeable of the meanings operative in the rulings: no Companion objected to Omar, which constitutes a consensus among them. He says in "Zad al-Maad": the prohibition of the contract of hire can only rest on a benefit, and this is established neither by the Book, nor by the Sunna, nor by consensus; what is established from the Companions is its opposite, as it is authentically reported that Omar (may Allah be pleased with him) accepted Usayd ibn Hudayr's garden for three years, took the wage and settled the debt; the garden being the palms, this is renting trees for their fruit, the madhhab of the Commander of the Faithful Omar ibn al-Khattab, with no known opponent among the Companions; Abu al-Wafa Ibn Aqil, among Ahmad's companions, chose it, as did our shaykh ("Ighathat al-Lahfan" (2/7, 8), "Majmu al-Fatawa" (29/61), "Zad al-Maad" (5/528)).
He also says: there is no analogical difference between renting land to one who works it until it yields and renting a tree to one who serves it until it bears: the two are alike. The difference between renting the tree to one who serves it until it bears and selling the fruit before its soundness appears is of three kinds. The first: the contract here falls on the sale of an object, whereas hire falls on a benefit, even if the object is its purpose, which does no harm, just as the purpose of the benefit of land rented for cultivation is an object. The second: the renter receives the tree and serves it as he receives the land, whereas in sale it is the seller who tends the tree, the buyer having no benefit from its shade, from seeing it, or from spreading clothes on it: where is the resemblance between the two ? The third: renting the tree is a contract on an existing, known object, benefiting from it in all the ways of use, the fruit following in addition even if it is the purpose, as it is said of the well's benefit that its water follows in addition; sale, by contrast, is a contract on an object not yet created: they are two different things.
The secret of the matter: the tree is like the land; its service and care are like clearing and serving the land; the crop of the seed is like the picking of the fruit. If there is a sound analogy in the world, it is this one. Taqi al-Din al-Subki (may Allah have mercy on him) said: "As for hire, it should be permitted in it: just as land is rented to be cultivated, trees are rented for their fruit; I find no difference between them nor any proof of their invalidity, and Abu Ubayd's words state nothing explicitly about prohibiting or permitting the renting of trees; and Allah knows best" ("Ahkam ahl al-Dhimma" (2/262, 264), "Fatawa al-Subki" (429)).
The object of the work is the tree that is watered. The jurists agree on the validity of musaqat for the palm and the vine, due to the text about the palm, from Ibn Umar (may Allah be pleased with them both):
The Prophet (peace and blessings of Allah be upon him) contracted with the people of Khaybar for half of what it produced, in fruit or crop.Narrated by Bukhari (2203) and Muslim (1551)
And from Ibn Abbas (may Allah be pleased with them both):
The Messenger of Allah (peace and blessings of Allah be upon him) conquered Khaybar and stipulated for himself the land and everything yellow and white. The people of Khaybar said: "We know the land better than you; give it to us for half the fruit for you and half for us." It is related that he granted it to them. When the time came to cut the dates, he sent Abdallah ibn Rawaha, who estimated the fruit of the palms, what the people of Medina call al-khars. He said: "This is worth so much and so much." They said: "You have exaggerated, O Ibn Rawaha." He replied: "It is I who made the estimate, and I give you half of what I said." They said: "This is the justice with which the heaven and the earth stand: we accept to take it according to what you said."Narrated by Abu Dawud (3410), Ibn Majah (1820) and al-Bayhaqi in al-Kubra (11408); its chain is hasan sahih
The vine is joined to the palm through the common link of the obligation of zakat and the possibility of estimation. The jurists then disputed whether it is valid for other trees: the majority of the jurists, the Hanafis (the view of Abu Yusuf and Muhammad, followed in fatwa), the Malikis, al-Shafi'i in the earlier position, al-Nawawi's choice, and the Hanbalis in the madhhab, validate it for every fruit-bearing tree, based on Ibn Umar's hadith.
Ibn Umar's hadith is general for every fruit; hardly a town with trees is devoid of trees other than palms. Moreover, the tree fruits every year: it resembles the palm and the vine; and the need that motivated musaqat for the palm and the vine, namely the owner's possible inability to tend and water, is found in other trees and more so, given their abundance: musaqat is therefore permitted for them as for the palm. The obligation of zakat is not the effective cause of the permission and has no effect in it; the cause is what we have mentioned ("al-Jawhara al-Nira" (4/260), "Mukhtasar Ikhtilaf al-Ulama" (4/22), "al-Ikhtiyar" (3/99), "al-Lubab" (2/14), "Khulasat al-Dalail" (2/514), "al-Ishraf" (3/185, 186), no. 1032, "al-Sharh al-Kabir" (5/315), "al-Taj wa-l-Iklil" (4/441), "Tahbir al-Mukhtasar" (4/536), "Rawdat al-Talibin" (3/769), "Mughni al-Muhtaj" (3/363), "al-Najm al-Wahhaj" (5/294), "al-Mughni" (5/227), "al-Insaf" (5/466), "Kashshaf al-Qina" (3/624), "Rawd al-Murbi" (2/83), "Manar al-Sabil" (2/199)).
The Shafi'is in the madhhab, and Ahmad in one narration, hold that it is not permitted beyond the palm and the vine: it is a license (rukhsa) specific to its locus, the palm, to which the vine was joined through the link of zakat and estimation ("Rawdat al-Talibin" (3/769), "Mughni al-Muhtaj" (3/362, 363), "Nihayat al-Muhtaj" (5/281), "al-Najm al-Wahhaj" (5/292, 294), "al-Dibaj" (2/443), "Kanz al-Raghibin" (3/147), "al-Insaf" (5/466)).
The jurists agree that musaqat, outright or by extension, is not permitted on a tree without fruit, like the willow and the walnut, or with fruit not sought, like the stone pine and the cedar. Ibn Qudama (may Allah have mercy on him) said: Malik and al-Shafi'i said the same, with no known disagreement, since musaqat is only made for a share of the fruit; unless what is sought is the foliage, like the mulberry and the rose: analogy then requires permission, for the foliage is a growth that recurs every year, which can be taken, and a share of it can be stipulated: it therefore takes the same ruling as the fruit ("al-Mughni" (5/227), "Durr al-Mukhtar ma'a Hashiyat Ibn Abidin" (6/288), "al-Sharh al-Kabir" (5/315), "al-Taj wa-l-Iklil" (4/441), "Tahbir al-Mukhtasar" (4/536), "Rawdat al-Talibin" (3/769), "Mughni al-Muhtaj" (3/362), "al-Najm al-Wahhaj" (5/294), "Kashshaf al-Qina" (3/624, 625)).
The jurists of each school distinguish species in which it is valid from others in which it is not. The Hanafis: it is permitted for the palm, the tree, the vine, the rutab (plural of ratba, fresh fruit), the roots of the eggplant and garden vegetables (buqul). The buqul differ from the rutab: the buqul are like the leek, the herb and the chard; the rutab like the cucumber, the melon, the pomegranate, the grape, the quince, the eggplant and their like; for "tree" designates what has a stem, and these have stems; the license is for the need, which encompasses all ("al-Jawhara al-Nira" (4/260), "Mukhtasar Ikhtilaf al-Ulama" (4/22), "al-Inaya" (14/120), "al-Ikhtiyar" (3/99), "al-Lubab" (2/14), "Khulasat al-Dalail" (2/514), "Majma al-Anhar" (4/150), "Durr al-Mukhtar ma'a Hashiyat Ibn Abidin" (6/288)).
The Malikis: the musaqat of a tree is valid even if it is rain-fed (baal), since what involves effort and expense stands in place of watering; the baal is what is watered neither by channel nor by spring, but through its roots; on condition that it does not regenerate: if it regenerates, like the banana, which sprouts again before the first cutting of the bunch and never ceases, like the herb, the basil and the leek, musaqat is not valid for it, except as an accessory to something else. By tree is meant the roots; these have them; and once uprooted they regenerate. Musaqat of the herb and its like was forbidden because of their distance from the locus of the text, which is the tree. The roots in question are required to yield a harvested fruit and not to regenerate; otherwise, like the banana, the reed, the qurt (pasture grass) and the herb, it is not permitted: it is one bunch after another, one part after another. Musaqat therefore falls into three categories:
Among the Shafi'is, al-Nawawi (may Allah have mercy on him) makes the second pillar the object of the work, the tree, with three conditions. First condition: that it be a palm or a vine; other plants divide into two sections: those with a stem and those without. Those with a stem divide into two types. The first is the type bearing fruit, like the fig, the walnut, the apricot and the apple: two views, the earlier permitting musaqat and the later prohibiting it; the miql tree has two views under the later: Ibn Surayj permitted it and others forbade it; the soundest is the prohibition, and Allah knows best. The second type is that without fruit, like the plane tree (dulb), a well-known tree without fruit, and the khilaf: musaqat is not permitted for it; two views are given regarding the khilaf on account of its branches. The note specifies that the khilaf is a tree from which a pleasant water is extracted, like rose water, read with lightening, transmitted with doubling, and that Ibn Qutayba says in "Uyun al-Akhbar" that the khilaf is a tree whose fruit falls before maturity: it is the willow. The second section, that without a stem, is like the melon, the cucumber, the sugarcane, the eggplant and the vegetables that do not take root and are cut only once: musaqat is not permitted for them, as for crops; if they take root and are cut repeatedly, the madhhab is the prohibition, with two views, the sounder being the prohibition ("Rawdat al-Talibin" (3/769, 770)).
The Hanbalis: musaqat is permitted for every tree bearing edible fruit, even if no need calls for the contract: it is measured against it as against the others, and the same applies to muzaraa ("al-Mughni" (5/231), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/315), "al-Taj wa-l-Iklil" (4/442), "Tahbir al-Mukhtasar" (4/536), "Sharh Mukhtasar Khalil" (6/227, 228), "al-Bahja fi Sharh al-Tuhfa" (2/315), "Hashiyat al-Sawi" (8/440)).
The jurists agree to invalidate musaqat on fruit that has already appeared and whose soundness has become evident, which no longer grows through work: work adds nothing to it, its sale is permitted at that point, so no need calls for such watering; the worker earns a wage only through work, which has no effect after complete ripeness; and it would be a hire with an unknown wage, whereas the permission contrary to analogy holds only for the textual case, not this one.
The dispute concerns existing fruit whose soundness has not yet appeared and which grows through work. The majority of the jurists, the Hanafis (on the followed view, that of Abu Yusuf and Muhammad), the Malikis, the Shafi'is on the more apparent view and the Hanbalis in the madhhab, validate musaqat on fruit after its appearance, if its soundness is not yet apparent and it grows through work, as before its appearance; it is farther from chance, the fruit being assured; the same applies to a growing crop increased by work, as the Hanafis and the Hanbalis state. It is required that work remain by which the fruit can increase, such as manuring, watering and upkeep; if only what adds nothing remains, such as the recutting (jidad), it is not permitted without disagreement. If the fruit's soundness appears, it is no longer valid by consensus, except as an accessory, as the Malikis say: the accessory takes the ruling of what it follows ("Badai al-Sanai" (6/186), "Mukhtasar Ikhtilaf al-Ulama" (4/27, 28), "al-Jawhara al-Nira" (4/261), "al-Lubab" (2/14), "Mukhtasar al-Waqaya" (2/199), "Khulasat al-Dalail" (2/515), "al-Istidhkar" (7/52), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/315), "al-Ishraf" (3/186, 187), no. 1033, "al-Taj wa-l-Iklil" (4/442), "Tahbir al-Mukhtasar" (4/536), "Sharh Mukhtasar Khalil" (6/227, 228), "al-Bahja fi Sharh al-Tuhfa" (2/315), "Hashiyat al-Sawi" (8/440), "al-Muhadhdhab" (1/391), "Rawdat al-Talibin" (3/771, 772), "Mughni al-Muhtaj" (3/368), "Nihayat al-Muhtaj" (5/288), "al-Najm al-Wahhaj" (5/301, 302), "al-Dibaj" (2/448), "al-Mughni" (5/227, 228), "al-Sharh al-Kabir" (5/559, 560), "al-Mubdi" (5/47), "Kashshaf al-Qina" (3/627), "Rawd al-Murbi" (2/83, 84), "al-Ifsah" (2/39)).
The Shafi'is against the more apparent view, and the Hanbalis in the second narration, hold that it is not valid on existing fruit: the Prophet (peace be upon him) contracted with the people of Khaybar for half of what "came out," which is absent here; some of the works disappear; once the fruit has appeared the purpose is achieved, and one is like one who conducts mudaraba on property after the profit has appeared. Musaqat is a contract on chance, permitted on nonexistent fruit because of the need to extract it through work; when the fruit has appeared, the need vanishes. Moreover, this leads to acquiring through the contract an existing compensation in which ownership passes from the owner to the musaqi, which is invalid as if the fruit's soundness had appeared; it is a contract on work in property for a share of its growth, not permitted after the growth has appeared, like mudaraba; and it would make a hire with compensation known and unknown at once. As for their argument of lesser chance: little chance is not the cause of permission, just as the great chance present at the locus of the text is not a cause of prohibition; the Law came in a manner in which the worker acquires no existing compensation, and nothing of the owner's property passes to him.
The existing growth then comes about on their joint property according to their stipulation; it is therefore not permitted to contradict this locus nor to attach to it a contract that does not share its meaning, as if the fruit's soundness had appeared, or like mudaraba after the profit has appeared ("Badai al-Sanai" (6/186), "Mukhtasar Ikhtilaf al-Ulama" (4/27, 28), "al-Jawhara al-Nira" (4/261), "al-Lubab" (2/14), "Mukhtasar al-Waqaya" (2/199), "Khulasat al-Dalail" (2/515), "al-Istidhkar" (7/52), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/315), "al-Ishraf" (3/186, 187), no. 1033, "al-Taj wa-l-Iklil" (4/442), "Tahbir al-Mukhtasar" (4/536), "Sharh Mukhtasar Khalil" (6/227, 228), "al-Bahja fi Sharh al-Tuhfa" (2/315), "Hashiyat al-Sawi" (8/440), "al-Muhadhdhab" (1/391), "Rawdat al-Talibin" (3/771, 772), "Mughni al-Muhtaj" (3/368), "Nihayat al-Muhtaj" (5/288), "al-Najm al-Wahhaj" (5/301, 302), "al-Dibaj" (2/448), "al-Mughni" (5/227, 228), "al-Sharh al-Kabir" (5/559, 560), "al-Mubdi" (5/47), "Kashshaf al-Qina" (3/627), "Rawd al-Murbi" (2/83, 84), "al-Ifsah" (2/39)).
The jurists discussed the wadi, the young palm: is musaqat permitted for it ? The Malikis require that the tree under musaqat bear fruit within its year: it is therefore not valid for the wadi, the young palm that does not fruit in its year, unless it is few in number and accessory to what fruits in that year: the musaqat of the orchard is then valid even if it contains what does not fruit in its year, the latter being accessory to what fruits ("al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/315), "Tahbir al-Mukhtasar" (4/536, 546), "Sharh Mukhtasar Khalil" (6/228, 236), "Hashiyat al-Sawi" (8/440), "Manh al-Jalil" (7/385)).
The Shafi'is and the Hanbalis: if one entrusts the watering of a wadi, that is, young palms, or of young trees according to the Hanbalis, for a period, that period divides into three cases. First case: a period in which the tree usually bears a share of the fruit: the contract is valid, and the fact that most of the period is fruitless does no harm, as when five years are contracted while the fruit usually appears only in the fifth; for there is only an increase in the worker's labor and a decrease in his share, which does not prevent validity, as if he were given one part in a thousand. If the tree does not bear at all during the period, the worker gets nothing, as if he had watered productive palms that did not fruit.
Second case: a period in which the tree does not usually bear: it is not valid, the period being devoid of compensation, like the musaqat of a tree that does not fruit. If he nevertheless did so and worked: among the Shafi'is, no wage if he knew the tree would not bear within that period; if he did not know, he receives the wage, the period being referred to the judgment of those experienced with the trees of that region. Among the Hanbalis, two views on the wage if he worked without fruit; if it bore within the period, he does not receive what was stipulated for him, the contract having been concluded while defective, and what is stipulated in a defective contract is not acquired.
Third case: a period in which the tree may bear or may not bear, neither being more apparent: it is not valid on the soundest view of the Shafi'is and among the Hanbalis according to one view, like a salam on a thing whose existence within the term is uncertain; the worker receives the wage in it even without fruit, for he worked in hope. The view opposite the soundest of the Shafi'is, and a Hanbali view: it is valid, the fruit being hoped for like the qirad's profit: if it fruits, he receives what was stipulated; otherwise, nothing ("al-Hawi al-Kabir" (7/385), "Rawdat al-Talibin" (3/771), "Mughni al-Muhtaj" (3/368, 369), "Nihayat al-Muhtaj" (5/288), "al-Najm al-Wahhaj" (5/302, 303), "al-Dibaj" (2/448, 449), "al-Mughni" (5/238, 239), "al-Sharh al-Kabir" (5/560), "Kashshaf al-Qina" (3/627)).
The jurists discussed whether one who hands another a young tree to plant and tend until it bears, against an expressed and known share, concludes a valid contract. The Shafi'is in the madhhab: handing over a wadi, that is, a young palm, to plant so that the tree or its fruit be shared between them is not permitted: musaqat only concerns an established origin, and it is a license that does not go beyond its locus; planting is not among the works of musaqat, so this resembles adding non-commercial property to a qirad. If he worked, he has against the owner the wage of the like if the fruit is hoped for within the period, otherwise not, on the soundest view; he also has the land's wage if it belongs to him; if the planting belongs to the worker and the land to the owner, he has no wage and owes the rent of the land ("Rawdat al-Talibin" (3/771), "Mughni al-Muhtaj" (3/368), "Nihayat al-Muhtaj" (5/288), "al-Najm al-Wahhaj" (5/302), "al-Dibaj" (2/448)).
The Hanafis, the Hanbalis and the Shafi'is according to one view validate the contract: the planting is made by the owner of the land, as the seed must come from the owner in muzaraa. Imam Ahmad, in the narration of al-Marwuzi, regarding one who says, "Plant trees or palms in this land of mine; of whatever yield comes, you will have, for such work, such a share," permitted it by the hadith of Khaybar for the crop and the palms: the work and its compensation are known, like musaqat on an existing tree. If the planting comes from the worker, the owner of the land chooses: to have it uprooted while guaranteeing its diminution, or to leave it and pay the worker its value, like the buyer of land who planted there and then sees the relative claim it by preemption. If the worker chooses to uproot, it is his right, whether or not the owner pays the value: it is his property, and none may prevent him from transferring it. If they agree to keep the planting while paying the land's rent, it is permitted: the right does not exceed the two.
It is said that validity also holds if the planting comes from the musaqi or the munasib. The Shaykh (al-Nawawi): the practice goes this way; in "al-Insaf": its ruling is that of muzaraa; this choice is that of al-Muwaffaq (Ibn Qudama), of the commentator, of Ibn Razin, of Abu Muhammad al-Jawzi, of shaykh Taqi al-Din and of al-Hawi al-Saghir; Ibn Razin ruled decisively on it in his Nihaya and his Nazm; it is the strongest in evidence ("al-Mughni" (5/238, 239), "al-Mubdi" (5/48), "al-Insaf" (5/470, 471), "Kashshaf al-Qina" (3/627), "Rawd al-Murbi" (2/84)). Al-Tahawi (may Allah have mercy on him) reports that Bishr, from Abu Yusuf, said: if the tree has a value at the time of planting, it is not permitted; if it has none, it is permitted. Muhammad (may Allah have mercy on him) in "al-Muzaraa al-Kabir": "This is permitted for planting trees and palms, everything being shared in two halves between them; likewise the roots of the rutab; if they stipulate the fruit in two halves, it is also permitted according to their stipulation, and the roots belong to the planter" ("Mukhtasar Ikhtilaf al-Ulama" (4/26, 28)).
The Malikis define the mugharasa: giving one's land to one who plants trees in it. It takes three forms: a hire, planting for a known wage; a jul, planting for a share of what grows from it; or a form hesitating between the two, with a share of all of it and of the land. It is valid under five conditions:
The Malikis further forbid two things in the mugharasa, the musaqat and the muzaraa: that one stipulate for himself something to the exclusion of the other, except a little; and the stipulation of salaf (advance sale). If the mugharasa is concluded while defective, the owner of the land chooses between paying the renter the value of the planting or ordering him to uproot it ("al-Qawanin al-Fiqhiyya" (185, 186)).
The jurists agree to invalidate giving virgin land to a man for known years, so that he plants trees, a vine or palms in it, on condition that the land and the plantings be shared in halves between the owner and the planter. Ibn Qudama (may Allah have mercy on him) said: Malik, al-Shafi'i, Abu Yusuf and Muhammad said so, with no known opponent; for it is stipulating partnership in the origin, like handing over trees already planted in musaqat so that the origin and the fruit be shared, or stipulating in muzaraa the sharing of the land and the crop: neither is valid, and likewise the mudaraba ("al-Mughni" (5/239)).
All the fruit and the whole planting then belong to the owner of the land; the worker has the value of his planting and the wage of the like, with nothing in the land, little or much, as the Hanafis and the Malikis state: the contract on the tree being defective while the worker planted at the owner's command in his land, it is as if the owner had done it himself; he becomes the holder of the planting attached to his land and consumes its benefit through his irrigation channels: he therefore owes the value of the trees and the wage of like work, the worker having sought a wage, half the land or half the produce, and obtained nothing. The Hanafi device for validity: sell half the planting for half the land, and the owner hires the worker for three years, for example, for a small sum, to work his share, according to the words of Sadr al-Shari'a.
Ibn Abidin (may Allah have mercy on him) said: this device, though it secures the validity of partnership in the land and the planting, harms the owner of the land: hiring the partner for work on the common property is not valid, and he earns no wage if he works; he may therefore refrain from working and take half the land for a low price, unless it is considered that they separated the plantings and each planted his half apart: the hire is then also valid. Consider this well ("Hashiyat Ibn Abidin" (6/290), "al-Hidaya" (4/61), "al-Inaya" (14/127, 128), "Tabyin al-Haqaiq" (5/286), "Majma al-Anhar" (4/151), "al-Lubab" (2/15), "Mukhtasar al-Waqaya" (2/199), "al-Bayan wa-l-Tahsil" (15/407), "Rawdat al-Talibin" (3/771), "Mughni al-Muhtaj" (3/368), "Nihayat al-Muhtaj" (5/288), "al-Najm al-Wahhaj" (5/302), "al-Dibaj" (2/448), "al-Mughni" (5/238, 239), "Kashshaf al-Qina" (3/627), "Rawd al-Murbi" (2/84)).
The Hanbalis: if two partners work a tree that belongs to them in halves and stipulate inequality of the fruit, saying: "one third for you, two thirds for me," it is valid: the one stipulated two thirds may be stronger in work and more knowledgeable than the one stipulated a third ("al-Mughni" (5/238, 239), "al-Mubdi" (5/48), "al-Insaf" (5/470, 471), "Kashshaf al-Qina" (3/627), "Rawd al-Murbi" (2/84)).
The Shafi'is: stipulating in musaqat with the partner that they cooperate in the work corrupts the contract, even if an increase over the half is fixed for him, like contracting a stranger with this condition. If they cooperate equally, neither has a wage; if they differ: the one stipulated the increase, if he worked more, obtains his wage deducted from his share of the work; if the other worked more, there are two views on his wage. Helping him without stipulation does no harm.
If an orchard is shared in halves between two partners and one entrusts the watering to his partner while having two thirds of the fruits stipulated for himself, it is valid; likewise if he had a third of the latter's fruit stipulated. But if he stipulates a third of the fruits or half of them, it is not valid, because no compensation accrues to him through the musaqat: he already owns the half by ownership; if he works, there are two views on his entitlement to a wage, the soundest being that he has none, for he sought nothing. If all the fruits are stipulated for him, the contract is corrupt, and he has the wage on the soundest of the two views, for he worked in hope ("Rawdat al-Talibin" (3/772, 773), "Mughni al-Muhtaj" (3/369), "al-Najm al-Wahhaj" (5/303), "al-Dibaj" (2/449)).
The jurists agree that musaqat is valid only on a known tree. Knowledge occurs by sight, unanimously, or by a description leaving no room for disagreement, as in sale among the Malikis and the Hanbalis: without sight or description, entrusting the watering of an orchard is not valid, for it is a contract on the unknown, like sale. The position held among the Shafi'is is that description does not suffice: sight is required, because musaqat is a contract on chance to which the chance of no sight cannot be added, unlike sale. Entrusting the watering of one of two orchards without specifying is likewise not valid by consensus: it is an exchange whose object varies with the objects, as in sale ("Badai al-Sanai" (6/186), "al-Muhadhdhab" (391), "Rawdat al-Talibin" (3/770), "al-Mughni" (5/231), "Kashshaf al-Qina" (3/630)).
The Malikis permit the musaqat of an absent orchard, near or far, under two conditions. The first: describing the object to the worker, that is, mentioning everything the work needs: the servants and animals present or their absence, whether it is rain-fed or watered by spring or basin, the consistency of the soil, the species of trees, their number and the usual yield. The owner's description suffices, as in sale; the worker's earlier sight, if nothing has changed since, stands in place of description; and it is permitted to conclude without description, with an option upon seeing, as in sale. The second: concluding at a time when the worker can arrive before the good ripeness; otherwise it is not permitted on Ibn al-Qasim's view, but permitted on Suhnun's even if he arrives only after the ripeness. If he concluded in time then delayed on the road and arrives only after the ripeness, the musaqat is not corrupted by that. The travel expenses are borne by the worker, unlike the qirad ("al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/322, 323), "Mawahib al-Jalil" (7/365), "Tahbir al-Mukhtasar" (4/542, 543), "al-Taj wa-l-Iklil" (4/448), "Sharh Mukhtasar Khalil" (6/232)).