Islamic Fiqh > Companies and leases > Musaqat (irrigation sharing) > The fourth pillar: the fruits
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
First condition: sharing the produce. The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, require that the produce of the fruits be shared between the two contractors: if they stipulate that it belongs to one of them, the musaqat is corrupt, the meaning of partnership being necessary to this contract, and any condition that breaks the partnership corrupts the contract. Among the Shafi'is, on the wage when all the fruits are stipulated for the owner, there are two views, the sounder being deprivation, for he worked free of charge. The Malikis permit that all the fruit belong to the worker or to the orchard owner: since leaving a part of the fruit in exchange for work is permitted, leaving all of it is also permitted; some orchards find no one to water them if the owner demands a share, and abandoned they perish, while the total musaqat is more useful to him for the future; it is then a true musaqat, and the worker is compelled to work or hires someone; unless evidence shows an intent of gift, given the low expense and the high yield: the rules of gift then apply; in case of doubt, it is taken as exchange ("al-Mudawwana al-Kubra" (12/9), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/316), "commentary of Miyara" (2/191), "Manh al-Jalil" (7/338), "al-Tabsira" (10/4692, 4693), "Badai al-Sanai" (6/177, 186), "al-Hindiyya" (5/235), "Rawdat al-Talibin" (3/770), "Mughni al-Muhtaj" (3/367), "Nihayat al-Muhtaj" (5/286), "al-Najm al-Wahhaj" (5/301), "al-Dibaj" (2/448), "Kashshaf al-Qina" (3/628)).
Second condition: that the owner and the worker alone be entitled to the produce: stipulating a part of the fruits for a third party corrupts the contract among the Shafi'is ("Rawdat al-Talibin" (3/770), "Mughni al-Muhtaj" (3/367), "Nihayat al-Muhtaj" (5/286), "al-Najm al-Wahhaj" (5/301), "al-Dibaj" (2/448)). Third condition: that each one's share be an expressed portion, known in quantity. The jurists of the four schools agree to require that the owner's share and the worker's share be a known, expressed portion of the fruit, such as half, a third or a quarter, and not outside the produce, according to Ibn Umar's hadith cited above. The share, small or great, is permitted without disagreement: it is an exchange contract, valid according to what the two agree upon, orchards differing in their works: some cost little and the share decreases, others demand much effort and the share increases.
Stipulating for the worker one part in a hundred, or reserving a part for oneself and leaving the rest to him, is permitted by their agreement, except if a part in a hundred is stipulated for the owner of the tree with the rest for the worker: that is a device for selling the fruit before its soundness appears, hence invalid, as the Hanbalis state. Known fractions such as fifty parts, three eighths, sixths and a half-seventh are permitted. "The fruit is between us," "half is mine," "half is yours," without specifying the rest: valid, as the Shafi'is and the Hanbalis state. An ambiguous share: "a part," "a portion," "a lot": the contract is corrupt, division being impossible without a known quantity. Stipulating a known beast-load (asu), or adding a beast-load to the known share, is not permitted: the growth may not reach that load, to the owner's detriment, or may exceed it, to the worker's detriment.
Stipulating the fruit of specific palms is likewise not permitted: they may not bear, all the fruit then belonging to the owner, or they alone may bear, the fruit then belonging to the worker. For this reason the Prophet (peace be upon him) prohibited the muzaraa in which a specific plot would be fixed for the owner and another for the worker. Rafi' ibn Khadij (may Allah be pleased with him) said:
We used to rent land on condition that such a plot be ours and such a plot theirs; yet sometimes this one produced and not that one. We were therefore forbidden that, but not cash (waraq).Narrated by Bukhari (2573) and Muslim (1547)
The Hanbalis: if any of these corrupt conditions is stipulated, the musaqat is corrupt and all the fruit belongs to the owner of the property, being the growth of his ownership; the worker has the wage of the like, as in the corrupt mudaraba ("Badai al-Sanai" (6/186), "al-Hindiyya" (5/235), "al-Ijma" (542), "al-Kafi" (381), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/316), "commentary of Miyara" (2/191), "Manh al-Jalil" (7/338), "al-Tabsira" (10/4692, 4693), "Sharh Mukhtasar Khalil" (6/228), "Tahbir al-Mukhtasar" (4/537), "al-Taj wa-l-Iklil" (4/443), "Mawahib al-Jalil" (7/356), "al-Tanbih" (121), "Rawdat al-Talibin" (3/770), "Mughni al-Muhtaj" (3/367), "Nihayat al-Muhtaj" (5/286), "al-Najm al-Wahhaj" (5/301), "al-Dibaj" (2/448), "Kifayat al-Akhyar" (346), "al-Mughni" (5/228), "Kashshaf al-Qina" (3/628), "al-Iqna fi Masail al-Ijma" (3/1631), nos. 3200, 3201).
The Malikis require that the stipulated share be common to the whole orchard, not taken from the fruit of a specific tree, and undifferentiated: stipulating half of one species and a third of another is not permitted, just as stipulating half of one kind of fruit and a third of another ("al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/316), "commentary of Miyara" (2/191), "Manh al-Jalil" (7/338), "Sharh Mukhtasar Khalil" (6/228), "Tahbir al-Mukhtasar" (4/537), "al-Taj wa-l-Iklil" (4/443), "Mawahib al-Jalil" (7/356)).
The Shafi'is: if a man owns an orchard with varieties of palms and entrusts the watering for half the fruit, it is valid even without knowing every variety, the compensation being known. If he says, "half of such variety, a third of such, a sixth of such," it is valid if the worker and the owner know the quantity of each variety, each having a known share; otherwise, or if one of them does not know, it is not valid, each one's share fluctuating ("al-Bayan" (7/260), "Mughni al-Muhtaj" (3/367)). The Hanbalis: if the orchard contains trees of kinds such as the fig, the olive, the vine and the pomegranate, and a share is stipulated for the worker from each kind, such as half the fig's fruit, a third of the olives, a quarter of the vine and a fifth of the pomegranates, or shares of each variety of one kind, the two knowing the quantity of each variety, it is valid: it is like four separate orchards, each watered for a different share; if the quantity is unknown to one or both, it is not permitted, for the greater part of the orchard may be of the species whose share was set low.
"I entrust you with the watering of these two orchards: half of this one and a third of that one" is valid: it is a single transaction combining two compensations, like: "I sold you these two houses, this one for a thousand and that one for a hundred." "Half of one of the two and a third of the other" is not valid: it is unknown, one does not know which yields the half. If the single orchard divides into two distinct halves and half of one and a third of the other are stipulated, it is valid: they are like two orchards ("al-Mughni" (5/229), "Kashshaf al-Qina" (3/629), "Matalib Uli al-Nuha" (3/566)).
Fourth condition: not stipulating extra dirhams. The jurists of the four schools agree: stipulating a known share of the fruit and known dirhams, such as ten, is not permitted without disagreement, said Ibn Qudama (may Allah have mercy on him): the growth may not reach the value of those dirhams, to the detriment of the owner or the worker; the corrupt musaqat is not permitted ("al-Mughni" (5/238)). Ibn Rushd (may Allah have mercy on him) said: they agree on forbidding the stipulation of an additional benefit, such as extra dirhams or dinars ("Bidayat al-Mujtahid" (2/187)). For stipulating dirhams combines hiring and partnership in the produce, which corrupts the musaqat ("al-Mabsut" of al-Sarakhsi (23/160)).
Ibn Qudama (may Allah have mercy on him) said: this is why we forbid the stipulation of known quintals; dirhams separate from the share are no more permitted; being given the fruit of a year other than the contracted year, or the fruit of another tree, or having work stipulated on another tree or in another year corrupts the contract, whether it represents all his right or part of it, all the work or part: it contradicts the object of musaqat, which is to work on a specific tree for an expressed share of its fruit within the time in which the work is due ("al-Mughni" (5/238), "al-Awsat" of Ibn al-Mundhir (6/73), "al-Mubdi" (5/58), "al-Mabsut" of al-Sarakhsi (23/160), "Bidayat al-Mujtahid" (2/187)).
Three conditions weigh on the work. The first two: that the worker alone perform the work and that the owner leave him free with the tree. The majority of the jurists, the Hanafis, the Malikis and the Shafi'is, state that the validity of musaqat requires the worker to be alone in the work and the owner to leave him alone with the tree: stipulating the owner's work alongside the worker is not valid. The Hanafis: the clearing of the way (takhliya) in favor of the worker is required, to the point that stipulating the work of both corrupts the musaqat, the clearing being absent ("Badai al-Sanai" (6/186), "al-Hindiyya" (5/277)).
The Malikis: the owner cannot say, "water it, you and I, my orchard, and you will have half its fruit"; musaqat consists in handing over the orchard. Ibn Rushd (may Allah have mercy on him): there is no disagreement on this, it is not proper, and it is contrary to the Sunna, which came with handing the orchard to the worker. If it occurs and work is done: if the owner stipulated himself working with him, the worker has the wage of the like, the owner having hired him to assist in the work for a share of the fruit; if the worker stipulated that, he has the musaqat of the like: the orchard having been handed to him, the side of musaqat prevails over hiring ("al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/327), "Sharh Mukhtasar Khalil" (6/235), "Tahbir al-Mukhtasar" (4/546), "al-Taj wa-l-Iklil" (4/451), "Mawahib al-Jalil" (7/370)).
The Shafi'is: validity requires the worker to be alone in the work, so as to be able to work whenever he wishes: stipulating that the owner works with him voids the contract, in contradiction with the object of musaqat, even if the tree is in the worker's hand. The rule: everything incumbent on the worker, if stipulated on the owner, corrupts the contract on the soundest view; it is said that it corrupts the condition only. Stipulating the work of the owner's servant alongside him, without giving him a share of the hand or participation in management, is valid on the text of the madhhab; the servant must be known by sight or description, his upkeep is on the owner as following from ownership; stipulating a share for the servant in the fruit without a known quantity is not valid, the remainder becoming unknown; stipulating it to the worker with a quantity is valid, and custom suffices for what is tolerated in contracts. It is also required that the worker alone hold the hand in the orchard: stipulating that it remain in the owner's hand or in the hands of both is not valid ("Rawdat al-Talibin" (3/774), "Mughni al-Muhtaj" (3/370), "Nihayat al-Muhtaj" (5/290), "al-Najm al-Wahhaj" (5/304), "al-Dibaj" (2/449), "Kifayat al-Akhyar" (345, 346)).
Third condition: not stipulating work foreign to the works of musaqat. The jurists agree that the owner cannot stipulate of the worker what is not of the kind of watering works, such as building the orchard's wall or digging a new well: that would be inserting a contract into a contract. Ibn Rushd (may Allah have mercy on him) said: they agree on forbidding the stipulation of an additional benefit: extra dirhams or dinars, or anything outside the musaqat, except the little according to Malik, such as closing the fence (hizar) and repairing the zafira, the basin that gathers the water ("Bidayat al-Mujtahid" (2/187), "Hashiyat Ibn Abidin" (6/292), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/331), "Tahbir al-Mukhtasar" (4/548), "Rawdat al-Talibin" (3/773), "Mughni al-Muhtaj" (3/370), "Nihayat al-Muhtaj" (5/290), "al-Najm al-Wahhaj" (5/304), "al-Dibaj" (2/449)).
The Hanbalis add: stipulating the work of the owner or of his servant alongside the worker, assisting him, is valid, like stipulating the work of a beast; the owner's work without stipulation does no harm. But if the worker stipulates that the wage of the helpers be taken from the price of the fruit, with or without fixing it, that is not valid: the work being his, one does not stipulate receiving its compensation ("al-Mughni" (5/233), "al-Furu" (4/290), "al-Insaf" (5/433), "Kashshaf al-Qina" (3/600), "Sharh Muntaha al-Iradat" (3/571), "Matalib Uli al-Nuha" (3/523, 568)).
Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: the Sunna in musaqat is that the orchard owner may stipulate of the worker the tightening of the fence, the cleaning of the spring, the digging of the watering channels, the placing of the male spadix on the female spathe (ibar), the cutting of excess midribs, the picking (jadd) of the fruit and its like, for half the fruit, or less, or more, as they agree. He may not stipulate from the start a new work: digging a well, building an enclosure, bringing a spring or planting with his own seedlings: this is the view of the majority of the jurists ("al-Iqna fi Masail al-Ijma" (3/1629), no. 3197).
The Hanafis: every work of watering that the tree, the vine, the rutab and the eggplant roots need, such as watering, repairing the channel, guarding and pollinating the palm, is incumbent on the worker: these are consequences of the object of the contract. Everything that falls under expense on the tree, the vine and the land, such as manure (sirjin), turning the soil and setting up trellises, is on the two according to their rights: the contract did not intend it, neither as purpose nor as necessity; likewise the picking (jidad) and the harvest, which come after the work ends and therefore do not fall under the contract. It is said: what precedes ripeness, watering, pollination and guarding, is on the worker; what follows it, picking and guarding, on both; stipulating it on the worker corrupts the contract by consensus. Stipulating what leaves no benefit after the period, pollination, manuring, watering, is permitted; what subsists after the end of the period, spreading manure, trellises, planting trees, turning the soil, corrupts the contract: neither required by the contract nor necessary to its object. Work after the division, carrying home and milling, is on the two: shared before the division, individual on each one's share after, each one's ownership having become distinct ("Badai al-Sanai" (6/187), "Durr al-Mukhtar ma'a Hashiyat Ibn Abidin" (6/291, 292), "al-Hindiyya" (5/277)).
The Malikis: everything the orchard needs by custom is incumbent on the worker, even beyond the period of the musaqat, without needing to detail it in the contract: custom governs, such as ibar (placing the male spadix on the female), cleaning for the benefit of the trees, pruning the palms and removing what harms the tree. The worker maintains the tools, buckets and skins, as well as the hired hands and the animals; from the day of the contract he feeds the servants, hired hands and animals of the orchard, and clothes those needing clothing, whether they were there before the contract or brought after. He also bears, on the soundest view, the replacement of worn buckets and ropes; it is said: on the owner. The picking (jidad), the harvest, the drying of the fruit and the threshing are his. Al-Hattab (may Allah have mercy on him) reports from the Mudawwana: all the work and the expense, the entire burden, are on the worker, even without stipulation: everything the fruit needs, ceasing with its end or leaving a little after. The Muqaddimat: orchard work that does not touch the repair of the fruit does not bind the worker, and only a little of it may be stipulated: closing the enclosure, repairing the zafira. What touches the repair of the fruit and ceases with it, such as digging, watering, pruning the vines, trimming the trees, drainage, straightening, repairing the watering places, pollination and picking, binds the musaqi. What is installed and remains after the fruit, such as digging a well, building a zafira, a planting or a harvest house (jarin), does not bind the worker and cannot be stipulated to him ("Mawahib al-Jalil" (7/359, 360), "Bidayat al-Mujtahid" (2/186), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/318), "Sharh Mukhtasar Khalil" (6/229, 230), "Tahbir al-Mukhtasar" (4/538, 539), "al-Taj wa-l-Iklil" (4/444, 445), "Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/445), "al-Bahja fi Sharh al-Tuhfa" (2/318)).
The Shafi'is: the worker assumes what the productive tree needs for its soundness and increase, what recurs every year: watering, cleaning the channel, repairing the basins (ajajin) where water gathers, pollination, weeding, cutting harmful stems, trellising by custom, guarding the fruit, picking and drying on the soundest view. What aims at preserving the origin without recurring every year, such as building walls or digging a new channel, is on the owner. Al-Shafi'i (may Allah have mercy on him): everything bringing an increase to the fruit, repairing the water and its path, managing the midribs, the palms' ibar, cutting harmful plants, may be stipulated to the worker; the tightening of the fence, with no increase and no effect on the fruit, may not be stipulated to him.
Al-Mawardi (may Allah have mercy on him) divides the stipulated work into four types:
The Hanbalis: the open contract imposes on the worker what serves the fruit's soundness and increase: plowing under the trees, the oxen and the plow tool, watering, drawing water, repairing and cleaning the water paths, cutting harmful plants and thorns, cutting dry wood, pruning the vines, cutting what needs cutting, leveling the fruit, repairing the basins where water gathers at the palms' roots, the water wheel, and guarding the fruit on the tree and after, until the division, with sun-drying what must be dried. To the owner returns what preserves the origin: closing the walls, cutting the channels, the wheel, the well and buying the pollinator. Ibn Qudama (may Allah have mercy on him) said: some scholars expressed it differently: "what recurs every year is on the worker, what does not recur is on the owner of the property"; this is correct for work, the purchase of the pollinator remaining on the owner even if repeated, not being work. The ox turning the wheel: our companions place it on the owner, it not being work; it is preferable to place it on the worker, devoted to work like the plow oxen, drawing water being his when done without a beast. Manure: the purchase is on the owner, the spreading on the worker, like pollination. In an open contract, each bears what precedes; stipulating it is only confirmation. Stipulating on one what belongs to the other: al-Qadi and Abu al-Khattab do not permit it, and the musaqat then becomes corrupt, like mudaraba when work is stipulated on the owner. What supports validity has been narrated from Ahmad: picking being on both, stipulating it on the worker is permitted: it is a condition that does not harm the contract's interest nor corrupt it, like deferring the price in sale, pledge, guarantee and option; provided each one's work is known, to avoid dispute and laxity, and that the owner's work is not the greater part, the worker earning by his work: if he does not perform the majority of the work, his work is worth nothing ("al-Mughni" (5/231, 232), "al-Kafi" (2/294), "al-Mubdi" (5/52, 53), "al-Insaf" (5/447, 449), "Kashshaf al-Qina" (3/634, 635), "Sharh Muntaha al-Iradat" (3/607, 608), "Rawd al-Murbi" (2/85), "Matalib Uli al-Nuha" (3/523, 568)).
The scholars discussed whether the picking and the harvest, cutting the fruits and keeping them in the harvest house (jarin), belong to the owner, the worker or both, and whether stipulating them is valid. The Hanafis, the Shafi'is against the soundest view and the Hanbalis in the madhhab: they belong to both according to their rights, for they come only after complete ripeness and the end of the musaqat. If picking is stipulated to the worker: the Hanafis say it is corrupt without disagreement, it not being part of the transaction, and the expense of common ownership falling on both according to their shares. Nasr ibn Yahya and Muhammad ibn Salama reported that all of this is on the worker, stipulated or not, by custom; al-Sarakhsi (may Allah have mercy on him): it is the correct view in our regions too; stipulating any of it on the owner corrupts the contract among all, there being no custom. Ibn Abidin (may Allah have mercy on him) reports from shaykh Abu Bakr Muhammad ibn al-Fadl (al-Balkhi): asked about this question, he used to say, "There is a manifest custom; whoever wants not to be idle should act by the custom." Where harvest is customarily on the worker, if he delays and neglects it until it perishes, Abu Bakr al-Balkhi declares him liable; al-Faqih Abu al-Layth: a loss through gross delay, such as people do not commit, entails liability, otherwise not; and all this if these works were stipulated to the worker: stipulating any of it on the owner corrupts the contract among all ("Tanqih al-Fatawa al-Hamidiyya" (6/225, 226), "Hashiyat Ibn Abidin" (6/282), "Badai al-Sanai" (6/186), "al-Bahr al-Raiq" (8/186), "al-Hindiyya" (5/277), "al-Mughni" (5/232), "al-Sharh al-Kabir" (5/591), "Kashshaf al-Qina" (3/643), "Rawd al-Murbi" (2/85), "Manar al-Sabil" (2/207)).
The Hanbalis and the Shafi'is against the soundest view permit stipulating the picking to the worker, since it does not harm the contract's interest. The Malikis, the Shafi'is on the soundest view and the Hanbalis according to one view: the picking, the harvest and the gleaning (liqat) are on the worker, for they are part of the work; the fruit does not dispense with them even at full ripeness; and the Prophet (peace be upon him) entrusted Khaybar to the Jews on condition that they work it at their own expense: it therefore falls under work, like sun-drying. The Hanbalis add: stipulating that the helpers' wage be taken from the fruit's price, with or without fixing it, is not valid, like stipulating his own wage, the work being his. Among the Malikis, stipulating the picking on the owner and the worker is permitted ("Mawahib al-Jalil" (7/359, 360), "Bidayat al-Mujtahid" (2/186), "al-Ishraf" (3/187, 188), no. 1035, "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/318), "Sharh Mukhtasar Khalil" (6/229, 230), "Tahbir al-Mukhtasar" (4/538, 539), "al-Taj wa-l-Iklil" (4/444, 445), "Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/445), "al-Bahja fi Sharh al-Tuhfa" (2/318), "Manh al-Jalil" (7/405), "al-Hawi al-Kabir" (7/370, 371), "Rawdat al-Talibin" (3/778), "Mughni al-Muhtaj" (3/373), "al-Najm al-Wahhaj" (5/309), "al-Dibaj" (2/452), "al-Mughni" (5/232), "al-Sharh al-Kabir" (5/591), "Kashshaf al-Qina" (3/634, 640), "Rawd al-Murbi" (2/85), "Manar al-Sabil" (2/207)).
The Malikis: if he falls short of his stipulated or customary work, his share is reduced proportionally: if three plowings or three waterings were stipulated to him and he did two, the value of what he did and of what he left is considered: if what he left is worth a third, a third is deducted from his stipulated share. Example: the wage of three plowings is ten; that of two is eight: a fifth is deducted from his share of the fruit, and so on. But if he did not fall short, stipulated three waterings and did two because rain or irrigation dispensed with the third: nothing is deducted and he has his full share without disagreement, as Ibn Rushd said; unlike a hire with a wage fixed in dinars and dirhams for watering an orchard during the watering season, known to the experts: if rain comes and he stops, his wage is reduced by the duration of the rain; the difference is that hire is built on competition, unlike the musaqat ("al-Sharh al-Kabir" (5/333), "Mawahib al-Jalil" (7/377), "Sharh Mukhtasar Khalil" (6/239), "Tahbir al-Mukhtasar" (4/459), "al-Fawaih al-Dawani" (2/127), "Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/462)).
The Shafi'is on the sound view: if the owner stipulates works to the worker and the trees fruit while he has not done part of those works, he receives all that was stipulated for him, as if he had done nothing: he is a partner. Al-Qadi (al-Husayn) in his fatwas: he receives from the fruit only in proportion to his work: half the works gives him half of what was stipulated. This rests on his not being a partner; the sounder view is that he is, receiving his share even without work, as passed above ("Mughni al-Muhtaj" (3/376), "Nihayat al-Muhtaj" (5/297), "Asna al-Matalib" (2/401)).
The jurists discussed whether each party may rescind it at will or whether it binds both. The majority of the jurists, the Hanafis, the Malikis on the famous view, the Shafi'is and the Hanbalis according to one view: it is a contract binding on both, before and after the work, like hire: neither party may rescind it unilaterally without the other's consent, except for an excuse; otherwise the owner would rescind at the fruit's ripeness, voiding the worker's right; and it is like hire, a contract on work attached to an existing object. A Maliki view: it binds only through work, not by mere words, like the qirad. Al-Qarafi (may Allah have mercy on him): it cannot be assimilated to the qirad, whose profits depend on the markets, with no defined period, whereas the term of musaqat is the picking, accompanied by the renewal of the period: its purpose is not altered ("al-Dhakhira" (6/105, 106), "al-Mauna" (2/133), "Mawahib al-Jalil" (7/369), "Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/463), "Badai al-Sanai" (6/187), "Rawdat al-Talibin" (3/778), "Mughni al-Muhtaj" (3/374), "Nihayat al-Muhtaj" (5/294), "al-Najm al-Wahhaj" (5/310), "al-Dibaj" (2/452), "al-Mughni" (5/233), "al-Insaf" (5/472)).
The Hanbalis in the madhhab, and the Malikis according to one view, make it a contract revocable by both sides, by analogy to the mudaraba: a contract on a share of a property's growth, needing no period, each party able to rescind at will. Ibn Umar's hadith relates that Omar ibn al-Khattab expelled the Jews and Christians of the Hijaz; the Messenger of Allah (peace be upon him), after conquering Khaybar, intended to expel the Jews; the land having become the property of the Jews, the Messenger (peace be upon him) and the Muslims, they asked to stay on, working at their own expense for half the fruit, and the Messenger of Allah (peace be upon him) said: "We confirm you on it as long as we wish," and they stayed until Omar expelled them to Tayma and Jericho (Narrated by Bukhari (2983) and Muslim (1551)). Had it been binding, fixing a term or granting them an option during the period of their confirmation would not have been permitted; nothing is narrated of a term fixed by the Prophet (peace be upon him), and had it existed, its transmission would not have been abandoned, for it is a needed thing; Omar expelled them from the land and brought them out of Khaybar, which would not have been permitted with a fixed term.
The contract bears on a share of a property's growth: it is therefore revocable like the mudaraba, and differs from hire, which is a sale, binding like the sale of objects, its compensation being quantified and known; the analogy with hire is broken by the mudaraba, which resembles the musaqat more. To the objection that the owner would rescind after ripeness: the fruit once appeared belongs to both, and the worker's right does not fall, as in the mudaraba rescinded after the profit appears; rescinded after the appearance, the fruit is between them according to their stipulation, the completion of the work being on the worker, as the mudarib must sell the goods; if the worker rescinds before, he has nothing, having relinquished his right, like the mudaraba or juala worker who rescinds before finishing. If the owner rescinds before the fruit appears, he owes the worker the wage of the like, having prevented him from completing the work that entitled him to compensation, like the giver of a juala who rescinds before completion; he differs here from the owner in mudaraba, whose work does not necessarily lead to profit, whereas the musaqat's work generally leads to the fruit's appearance. A Hanbali view: revocable on the worker's side, binding on the owner's side ("al-Mughni" (5/233, 234), "al-Kafi" (2/290), "al-Mubdi" (5/49), "al-Insaf" (5/472), "Kashshaf al-Qina" (3/631), "Rawd al-Murbi" (2/84), "Manar al-Sabil" (2/204, 205)).
On the view that it is binding, the Shafi'is say: if the worker flees, falls ill or becomes unable before finishing, and the owner completes it at his own expense gratuitously, the worker's entitlement remains, like the gratuitous act of a third party who settles a debt; likewise the volunteer who assists him by his presence or does the whole work, whether the owner knows of him or not, without the owner being bound to accept the volunteer. Absent a volunteer, the judge, after the matter is brought, the musaqat established, the worker having fled and being impossible to find, hires someone to complete it at the worker's expense, even with his real estate; if he has nothing: after the soundness appears, his share is sold wholly or partly as needed and the hire is made with the price; before, whether the fruit has appeared or not, a loan is taken for him from the owner, a third party or the public treasury, there being no hire at deferred wage until ripeness, the sale of a part alone being impossible without a condition of cutting; the hire is made with the loan, the worker repaying afterwards, or the judge from his share of the fruit after ripeness; if the work is thus accomplished, the loan is superfluous. If the judge hires the owner or permits him to spend in order to return, he returns, as if he had borrowed from him; and if neither borrowing nor any other means is possible before the fruit comes out and after its soundness appears, the owner does not rescind on account of the partnership. The fruit is not sold with a condition of cutting, impossible given its common character, unless the owner consents to selling all of it: the sale is then valid. Before the fruit comes out, rescission is permitted, with the worker receiving the wage of his work. The judge likewise hires if the worker is present but refuses to work. If the owner cannot reach the judge, being beyond a day's journey, or present but refused, let him have his work or spending witnessed if he wishes to return: witnessing in a state of excuse stands as judgment, with explicit declaration of intent to return; without it, no return; and if he cannot have it witnessed, no return either, so rare is that excuse. Al-Khatib al-Shirbini (may Allah have mercy on him) said: in case of dispute over the amount of the spending, the imam has two possibilities regarding the credible one; al-Subki preferred Malik's view; the two shaykhs (al-Nawawi and al-Rafi'i) did not rule explicitly, but their words on the camels' flight imply believing the worker: they preferred the camel-driver's word, arguing that the spender had not relied on an authorization from the judge; 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 jurists discussed whether a term must be fixed. This depends on the preceding disagreement: whoever holds it a binding contract requires the term; whoever holds it revocable dispenses with it, each party able to rescind at will. The Hanafis: analogy would require that it not be valid except after fixing the term, for it is hiring the worker for a share of the produce, a hire like the muzaraa; but it is permitted without a term by istihsan, people contracting so: it falls on the first share of fruit of the first year, the beginning of the transaction being known, the fruit's ripeness having a known time and rarely varying; the ripening of the seed in the rutab roots equals that of the fruits, having a known end. Unlike crops, whose start varies greatly between autumn, summer and spring; and the planting already planted but not yet fruiting: there, only a fixed term is valid, lands varying greatly in strength and weakness; and palms or rutab roots entrusted without limit: the transaction is corrupt, having no known end, for they keep growing as long as they are left in the ground ("Badai al-Sanai" (6/180), "al-Hidaya, commentary on al-Bidaya" (4/59), "Tabyin al-Haqaiq" (5/284), "al-Inaya" (14/119), "al-Bahr al-Raiq" (8/187), "Majma al-Anhar" (4/148)).
The Malikis: contracting years in a single contract is permitted, even many, provided they are not excessive and the share does not vary from one year to another; if it varies, it is not permitted. The musaqat without a term is valid, interpreted as running from picking to picking (jidad): it is bounded only by the picking, never by a month or a delimited year. Without a term it runs to the picking; a term ending before or after the picking is not permitted: if it ends only after, it is a surplus stipulated by the worker on the owner, who also works his own share; hence neither a month nor a delimited year is permitted. Ibn Rushd (may Allah have mercy on him) reports the question put to Ashhab: one who contracted three years of watering, is that from picking to picking ? He answered: yes. Ibn Rushd: there is no disagreement known on this: the years of musaqat are counted by pickings, not by lunar months, unlike leases, which are counted by lunar months; stipulating departure before or after the picking reverts to a like musaqat. Al-Lakhmi (may Allah have mercy on him): two or three years, two ways: if one wants the watering to end with the fruit of those years, it is permitted; if one aims to extend the work to the end of the months of the last year even though the fruit would have been picked, it is not permitted: the worker is in the first years on a like musaqat, and from the picking to the end of the last year on a like hire. Al-Hattab (may Allah have mercy on him) concludes: the musaqat is bounded by the picking, for one year or several; without a term, it is one year; stipulating the Hijri year or Hijri years is not permitted and corrupts it. If there exists a species yielding two distinct crops a year, like some figs of the Maghreb, the musaqat, without stipulation, ends at the first; stipulating the second is permitted; the jummayz, the jujube and the mulberry, whose crops are not distinct, require the end of all ("Mawahib al-Jalil" (7/362, 363), "al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi" (5/320), "Sharh Mukhtasar Khalil" (6/230, 231), "Tahbir al-Mukhtasar" (4/540), "al-Taj wa-l-Iklil" (4/446), "Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/448), "al-Bahja fi Sharh al-Tuhfa" (2/320), "Manh al-Jalil" (7/397)).
The Shafi'is: musaqat is not valid for a known term, for it is a binding contract: valid without a term, the worker would be entitled to it in perpetuity, which is the status of real property. Hence: entrusting a palm or a wadi for a period in which it usually bears is valid; if it bears, the worker receives what was stipulated; if it does not bear because of a calamity, he has nothing, for in a valid contract one receives only what was stipulated. Entrusting it for a period in which the tree does not usually bear, as bearing in five years and entrusting four, is not valid: the purpose is to share the fruit, absent here. If he worked: al-Masudi (may Allah have mercy on him): if he did not know the tree would not bear by then, he has the wage on one view; if he knew it, two views: al-Muzani and most of our companions: nothing, for he entered knowing he would take no wage: he is a volunteer; Abu al-Abbas: the wage of the like, the musaqat contract requiring compensation, like the marital act in marriage. A period in which the tree may bear or not bear, neither weighing more: two views; the first: valid, like a period of usual bearing, and if he worked, he receives what was stipulated if the tree bears, otherwise nothing; the second: not valid, musaqat being valid only for a period of usual bearing; if he worked, he has the wage of the like on one view, having agreed to work only in exchange for compensation.
The term of the musaqat contract has three views: it may not exceed a year, for they are two contracts on chance whose validity rests on need, and need does not exceed a year, the benefits of objects being completed within it; it may run to thirty years, no more, half a lifetime, based on the Prophet's words (peace be upon him): "The lifespans of my community are between sixty and seventy"; or else: the contract holds as long as the object lasts, as al-Umrani said, and this is the view of most scholars, the correct one. Entrusting the roots of two years: must each year's share be specified ? Among us there are two views, like hire; others require the mention, the fruits varying from year to year. Ten years fixed, expired, then the fruit appears: the worker has no right, the fruit having come after the term; appearing in the last part of the tenth year, he owns a part of it, the term not having expired ("al-Bayan fi madhhab al-Imam al-Shafi'i" (7/254, 258), "Rawdat al-Talibin" (3/775)).
The Hanbalis: the musaqat contract requires no term, which is why neither the Prophet (peace be upon him) nor his caliphs (may Allah be pleased with them) fixed one for the people of Khaybar at the contract; it is a revocable contract, like the mudaraba and the other revocable contracts. Ibn Qudama (may Allah have mercy on him) said: if we say it is binding and valid only for a known term, as al-Shafi'i said; Abu Thawr validates it without a term, falling on one year, as do some Kufans by istihsan: stipulating a share of the fruit proves the intent of a term in which the fruit is obtained. Our argument: it is a binding contract, therefore to be bounded by a term, like hire; musaqat resembles hire, requiring work on an existing object; without a term and binding, the worker would monopolize the tree for its whole duration and become like the owner. It is not bounded by the year, that would be arbitrary, the fruit being completed in less; any agreed term while the tree lives is permitted, however long. It has been said: no more than thirty years; that is arbitrary, not acceptable without a text or consensus. The minimum: a term in which the fruit completes, the purpose being to share the fruit; below it, it is corrupt; if he worked and the fruit appeared without completing: the wage of the like on one of the two views, nothing on the other, for he agreed to work without compensation; the first is sounder, since he accepted only compensation, a part of the fruit, which exists but cannot be delivered to him: the agreed compensation being unavailable, his wage is that of the like, as in the corrupt hire; he differs from the volunteer, who accepts anything. If the fruit does not appear: he has nothing on the soundest view. A term in which the fruit usually completes but it did not bear that year: nothing for the worker, the contract being valid and the stipulated growth absent, like the mudaraba without profit; if the fruit appeared without completing, he has his share and must complete the work, as if the contract had been rescinded before completion. A term in which the tree may bear or not bear: two views on validity; the first: valid, the tree possibly bearing and musaqat being permitted for it; the second: not valid, a contract on what usually does not exist, with a chance that could have been avoided, like a salam on its like or stipulating the fruit of a specific palm; it differs from the term in which the fruit completes, bearing being the habit and fruitlessness rare, with no way to guard against it. If we say "valid contract": the worker has his share of the fruit; if it does not bear, he has nothing. If we say "corrupt": he has the wage of the like, whether it bore or not, having accepted only against an undelivered compensation; unlike a period in which the tree does not usually bear ("al-Mughni" (5/234, 235), "al-Kafi" (2/290), "al-Mubdi" (5/49), "al-Insaf" (5/472), "Kashshaf al-Qina" (3/641), "Rawd al-Murbi" (2/84), "Manar al-Sabil" (2/204, 205)).
Fruit coming out before the term gives the worker his right if the contract is valid; coming out after, he has no right in it, the madhhab of al-Shafi'i being close to what precedes ("al-Mughni" (5/234, 235), "al-Kafi" (2/290), "al-Mubdi" (5/49), "al-Insaf" (5/472), "Kashshaf al-Qina" (3/641), "Rawd al-Murbi" (2/84), "Manar al-Sabil" (2/204, 205)). The jurists then discussed whether the worker acquires his share of the fruit at its appearance on the tree or at the division. The majority, the Malikis, the Shafi'is in the madhhab and the Hanbalis in the madhhab: at its appearance: if all the fruit is destroyed except one fruit, that fruit is between them. For the worker's share in musaqat does not stand as surety for the capital, unlike the qirad where all the profit stands as surety for the capital: the worker owns nothing of it before the division on one of the two views. The stipulation being valid, its requirement is established like every valid stipulation: the fruit is between them in every circumstance, otherwise the division would not be obligatory nor the ownership acquired, like the roots.
The Malikis: the worker receives the fruits at the fruit's appearance on the tree or the crop: he is a partner in his share from that moment, not before, nor at the picking, nor at ripeness. If the contract is concluded while the fruit has come out, he has the right from the contract; and if a debt later befalls the orchard owner, the worker's share is not paid into it, for he is a partner in it ("Hashiyat al-Sawi ala al-Sharh al-Saghir" (8/436)). The Shafi'is according to one view and the Hanbalis according to one view: he owns his share only at the division, like the qirad ("al-Tanbih" (122), "al-Bayan" (7/268, 269), "Rawdat al-Talibin" (3/779), "al-Mughni" (5/237), "al-Mubdi" (5/54), "al-Insaf" (5/472), "Kashshaf al-Qina" (3/631)).
The jurists discussed whether the zakat of the fruit under musaqat or muzaraa is on the worker, on the tree's owner, or on both from the total of the fruit reaching the nisab, and whether stipulating it is valid. The Hanafis (the view of Abu Yusuf and Muhammad followed in fatwa, against Abu Hanifa), the Malikis, the Shafi'is according to one view and the Hanbalis in one narration: the zakat is on both according to their shares, the tithe weighing on the produce that is between them: they pay it first, then divide the remainder, with details in each school.
The Malikis: the zakat of the watered orchard is taken from the total of the fruit if it reaches the nisab, five awsuq, or if the owner joins to it the fruit of another orchard to reach the nisab; then the two divide the remainder, even if the worker is among those on whom zakat is not due, like the dhimmi. The zakat lapses if the orchard owner is exempt from it, being an unbeliever, even if the worker is subject to it: he is a hired man. If the owner is not of its people, or the fruit does not reach the nisab, alone or with other property of its kind, zakat is not due from him, nor from the worker on his share, even if it reaches the nisab, for he is a hired man. Stipulating the zakat on one of the two so that he pays it on behalf of the other is permitted on the famous view, it reverting to a known share; without stipulation, the zakat is paid first, then the division. It is said that this stipulation is not valid on one of them alone; it is said: on the worker only; it is said: on the orchard owner only ("al-Sharh al-Kabir" (5/323), "Mawahib al-Jalil" (7/365, 366), "al-Taj wa-l-Iklil" (4/448, 449), "Tahbir al-Mukhtasar" (4/543), "Sharh Mukhtasar Khalil" (6/232)).
The Shafi'is and the Hanbalis in the madhhab: it is due from each on his share reaching the nisab; if the nisab is reached only by combining them, it is not due, mixing having effect only on livestock according to one of the two views. If one's share reaches the nisab without the other's, the zakat is on the first alone, after the division, unless he owns elsewhere what completes the nisab: it is then on both; likewise if one owns other fruit of the same kind and the sum reaches the nisab. Ibn Qudama (may Allah have mercy on him) said: if one of the partners is exempt from zakat, like the mukatab or the dhimmi, the other pays the zakat of his share if it reaches the nisab; Malik and al-Shafi'i said this of all of it. Al-Layth: if the partner is a Christian, he is informed that zakat is due on the orchard, then the remainder is divided after it. Our argument: the Christian owes no zakat and pays nothing from his share, as if he owned it alone. Abu Dawud narrates in his Sunan from Aisha (may Allah be pleased with her):
The Prophet (peace and blessings of Allah be upon him) would send Abdallah ibn Rawaha to estimate the palms at their ripeness, before any was eaten, then give the Jews the choice: take the fruit at that estimate or leave it to him against that estimate; so that the zakat would be reckoned before the fruits were eaten and divided.Narrated by Abu Dawud (3413)
Jabir said: "Ibn Rawaha estimated it at forty thousand wasq; and when Ibn Rawaha gave them the choice, the Jews took the fruit with twenty thousand wasq owed by them" (authentic chain, Narrated by Abu Dawud (3415); "al-Mughni" (5/273), "al-Bayan" (7/269)).
Abu Hanifa (may Allah have mercy on him): the tithe in muzaraa is on the owner of the land, muzaraa being corrupt in his view: the produce belongs to him, in reality or by estimation. If the seed comes from the owner, all the produce is his and the farmer has the wage of his work; if it comes from the farmer, the produce is his and the owner has the wage of his land, equivalent to the produce, except that the tithe of his share is taken from the produce itself, and the tithe of the farmer's share remains a debt on the owner's liability. The benefit: loss voids what is attached to the object, not what is attached to liability. With Abu Yusuf and Muhammad (may Allah have mercy on them both), the tithe is on both according to their shares, muzaraa being valid with them. All this concerns the tithe (ushr); the kharaj is on the owner of the land by consensus ("al-Mabsut" (23/33), "al-Bahr al-Raiq" (2/255), "Hashiyat Ibn Abidin" (2/335)).