Muzara'a (agricultural sharecropping)

Muzara'a (sharecropping) is the contract by which the owner of a plot of land entrusts it to a cultivator, the muzari', to plough and cultivate it, in return for a defined share of the harvest. The jurists of the four schools have set out its conditions of validity, whether the contract is binding, the question of mentioning a term, the conditions that corrupt it, and what happens to the crop and the produce when the contract turns out to be invalid. The following sheets set out these questions school by school, with the proofs drawn from the Sunna and the references of the classical works.

Conditions for the validity of muzara'a according to the Malikis

The Malikis say: muzara'a is valid under four conditions.

First condition: that the two contracting parties are free from renting the land against a remuneration whose use as rent is forbidden; that is, the rent is paid in gold or silver, or in goods or livestock, but not in food, even if the land does not produce it, such as honey, nor with part of what it produces other than food, such as cotton and flax; whereas renting for reeds, wood and the like, such as hay, alum and sulfur, and similar substances, is permitted.

The proof of this prohibition is what Sulayman ibn Yasar reported: one of the paternal uncles of Rafi' ibn Khadij came to him and told him that the Messenger of Allah (peace and blessings of Allah be upon him) had forbidden something that used to benefit them, and that obeying Allah and His Messenger was more beneficial and better for them; when he was asked what it was, he related the following.

Whoever owns a piece of land, let him cultivate it or let his brother cultivate it, and let him not lease it for a third, nor for a quarter, nor for a measured amount of food.

Reported by Abu Dawud (3395)

This is an explicit text, and because food resembles what the land produces: leasing it for food is like selling food for delayed, unknown food, since the owner, by doing so, is as if he sold his land for that food, or for what his land produces, or leased it for the like of that food until a term and then bought honey or milk with what his land produces until a term. As for the proof of forbidding its lease for part of what it produces other than food, it is what Hanzala ibn Qays reported from Rafi' ibn Khadij:

The Messenger of Allah (peace and blessings of Allah be upon him) forbade leasing land. I said: for gold and silver? He said: No; he only forbade taking part of what they produce; as for gold and silver, there is no harm in it.

Reported by Imam Ahmad in al-Musnad (17297) and al-Bayhaqi in al-Sunan al-Kubra (11499)

Flax, cotton and the like are among what the land produces, so they are analogous to it if the two stipulate a third or a quarter; whereas reeds and wood are neither crops nor things leased for cultivation, so they are permitted.

Second condition: that an equivalent matches it. This means that when the land is matched by what equals it other than the seed, the partnership is valid. The equivalence is measured by the profit actually realized between them. Thus if the rental value of the land is 100 and that of the cattle and labor 50, and they agree that the landowner takes two thirds and the owner of the cattle and labor one third, it is valid; if they agree on half, it is invalid, because that would be a salaf (an advance loan). If it is the reverse, and they agree that the owner of the cattle and labor takes two thirds and the landowner one third, it is valid; if they agree on half, the contract is void, because that too would be a salaf.

And if the rental value of the land is 50 and that of the cattle and labor 50, and they agree on a third and two thirds, the contract is void. The intended equality is that the profit corresponds to what is contributed: there must be equivalence in both what comes out and what is put in; it is not intended that each of them take half.

They stipulated in the partnership contract that everything obtained from the crop is on a third and two thirds, or that what they contributed is on a third and two thirds, and they stipulated that what is obtained from the crop is shared equally.

Third condition: equality in profit, by agreeing that the profit is shared in proportion to what each contributes: each takes of the profit according to what he puts in. For example, the rental value of the land is 100 and the rental value of the work of cattle or other, apart from the seed, is 100, and they agree that the profit is shared half and half; or one contributes the equivalent of 50 and the other the equivalent of 100, and they agree that the owner of the 100 takes two thirds of the profit and the owner of the 50 one third, and so on. If in the first case they agree on a third and two thirds, and in the second on half and half, the contract is void. The partnership is accordingly not valid if their contributions are equal while they stipulate something other than an equal half, or if they differ and stipulate something other than the proportion.

It is permitted for one of them to make a voluntary gift to the other of the surplus of work or profit after the partnership has become binding through the seed, that is, after the valid contract, out of consideration for whoever holds it binding from the contract.

Fourth condition: that the two seeds be alike if they come from both of them; as if the land is between them and each contributes seed: they must be of the same kind, wheat, barley or beans; if they differ, such as wheat from one and barley or beans from the other, the contract is void, and likewise if each contributes an amount different from his partner's.

Mixing the two kinds, in reality or legally, is not required, according to Malik, Ibn al-Qasim and Sahnun in one narration: if each brings his seed and sows it in one spot, the partnership is valid, based on their principle in the partnership of property. But Sahnun, in the second narration, requires the mixing of the two seeds, because for him differentiation invalidates the partnership absolutely.

An example of what fulfills all the conditions:

• 1. Equal contributions, or, if they are more than two, equal overall: the land between them, the work between them, the tool likewise, by hire or owned by both or by one of them: there is no disagreement about the validity of this case.
• 2. The seed of one is matched by the work of the other, the land being between them.
• 3. The land of one is matched by the work of the other, the seed being between them; or both together: the work of one is matched against the seed and the land combined of the other. These three are permitted like the first, because the land is not matched by a seed sown in it. The rest of the conditions remain: agreeing that the profit is shared according to what each contributes, and that the two seeds are alike in the third case, the one where land is matched by work and the seed is between them.
• 4. Everything belongs to one of them, the land, the seed and the tool, animal or other, except the hand work alone: ploughing, clearing, harvesting and threshing. This is permitted, with the additional condition of concluding the contract with the wording of partnership, stipulating for the worker a share of the fifth of the crop or other (this is the question of the fifth, al-khumasiyya), and not with the wording of hire, for that would be hiring for an unknown wage, which is void; if the contract is concluded without specification (neither partnership nor hire), it is also void, since the unspecified reverts to hire.
• 5. The land, even if cheap and of no benefit, belongs to one, with his work, and the seed comes from the other: this is void, for part of the land would be matched against seed.

Qadi Abd al-Wahhab (may Allah have mercy on him) said: partnership in cultivation is permitted; its description is that the two are equivalent in work, expense, land and seed. If the seed comes from one and the land from the other, it is not permitted, whether the work falls on both or on one; for the owner of the seed has sold his share from his partner for what the partner's land produces, which is food for delayed food if they cultivate food, and mukhabara, the leasing of land for part of what comes out of it; and the landowner has leased his share for part of what comes out of it, which is not permitted.

If they cultivate it on that basis while remaining equivalent in the rest, work and cattle, the crop belongs to whichever of them takes charge of it: if the landowner takes charge, the crop is his and he guarantees the owner of the seed the like of the measure of his seed; if the owner of the seed takes charge, the crop is his and he guarantees the landowner half the rent of his land; if they take charge together, they divide it into two halves: half the measure of the seed falls on the landowner, and half the rent of the land on the owner of the seed. The land may be between them or belong to one of them, with the cattle and the expense from the other, and the seed from both.

What is guarded against in this chapter is anything that amounts to renting the land for food, or for part of what comes out of it, or the absence of equivalence; when one is free of that, it is permitted (al-Ma'una 2/137, 138; see also al-Sharh al-Kabir with the gloss of al-Dasuqi 5/43, 48; Tahbir al-Mukhtasar 4/272, 276; Sharh Mukhtasar Khalil 6/63, 66; Mawahib al-Jalil 7/128, 131; al-Taj wa-l-Iklil 4/186, 192; the gloss of al-Adawi on Sharh Kifayat al-Talib al-Rabbani 2/280; the gloss of al-Sawi with al-Sharh al-Saghir 8/52, 55; al-Bahja fi sharh al-Tuhfa 2/335; Minh al-Jalil 3/338, 340).

Conditions for the validity of muzara'a according to the Shafi'is

Muzara'a is not valid among the Shafi'is except on date palms or vines whose irrigation contract (musaqat) has been completed, and on bare land (bayad), that is, land with no crop and no tree. If it is bare land, the muzara'a is valid, according to what Ibn Umar reported, and because need calls for permitting this muzara'a: the palm trees cannot be watered except by watering the land between them.

The Prophet (peace and blessings of Allah be upon him) made an arrangement with the people of Khaybar for half of what it produces of fruit and crop.

Reported by al-Bukhari (2203) and Muslim (1551)

The conditions required for its validity are as follows:

• 1. That it follow the musaqat contract, without being concluded by an independent contract.
• 2. That the worker be the same in both; it is not valid to water one and give another in sharecropping, because difference removes subordination. This does not mean requiring one single person: if someone waters a group and gives them sharecropping in one contract, it is valid; what is meant is that the one who waters is not other than the one who cultivates.
• 3. The impossibility of watering the palms alone and of cultivating the bare land alone, because the palms benefit from the watering of the land and its turning; if that is possible, the muzara'a is not permitted, for lack of need.
• 4. The soundest view is that, when concluding the musaqat and the muzara'a, the two contractors must not be separated by an interval; the two acts must follow one another so that subordination is established. Thus if he waters him for a half, which he accepts, and then gives him sharecropping on the bare land, the muzara'a is not valid, because multiplicity of contracts removes subordination. Another view: the interval is permitted, since both acts accrue to one person. The point of dispute is where enough of the term of the musaqat remains for a muzara'a; otherwise it is categorically forbidden.
• 5. The soundest view: the muzara'a must not precede the musaqat, because it is subordinate, and the subordinate does not precede what it depends on. Another view: it may precede, and the contract remains suspended: if he waters him afterwards, it is valid, otherwise not. From the first view it is understood that the wording of one does not suffice for the other; but a wording that embraces both suffices, such as “I give you sharecropping of the palms and the bare land for half of each”; indeed the Imam reported the agreement of the scholars on this.
• 6. Al-Darimi (may Allah have mercy on him) said: it is also required to specify what he will cultivate, unlike renting land for cultivation; for here there is a partner who must know the crop, whereas there he has no right in the crop. The soundest view: a large bare land is like a small one for the validity of muzara'a over it, because the purpose is the difficulty of managing it alone, and need does not vary. Another view: no, because the large one is no longer subordinate. The assessment of “large” is made by the area of the land and the planting spots of the trees, not by the increase of growth, according to the soundest view.

The soundest view: it is not required that the stipulated share of the fruit in the musaqat be equal to the share of the crop in the muzara'a; one may stipulate for the worker half the dates and a quarter of the crop. Another view: it is required, because disparity removes subordination. The soundest view: mukhabara cannot be concluded in subordination to the musaqat, for lack of any text: what is transmitted in the story of Khaybar is the muzara'a, not the mukhabara. Another view: it is permitted, like the muzara'a, by the need common to both.

This debate concerns those who distinguish between muzara'a and mukhabara; for whoever makes them one, there is no objection.

If fallow land (qirad), or bare land interspersed among the palms or vines, is set apart by mukhabara, the produce belongs to the worker, because the crop follows the seed, and he owes the owner the rent of similar land. If it is set apart by muzara'a, the produce belongs to the owner, because it is the growth of his property, and the worker is owed the rent of similar work and the work of his beasts and his tools attached to it, such as oxen if they are his, whether or not anything comes of the crop; this is by analogy with the fallow: for he only accepted the loss of his benefit in order to obtain some of the crop; when he does not obtain it and all the benefit goes to the owner, he deserves the wage.

If the seed is from both, the produce is for both, and each owes the other the wage of whatever of his benefits accrued to the other's share.

The stratagem (hila) for dropping the wage and making the produce common between the owner and the worker, in the form of setting the land apart by muzara'a with no wage for either, is achieved in two ways:

• The first: the owner hires the worker for half the seed at the usual wage, so that he cultivates the other half for him in the land, and lends him half the land likewise; for the worker is entitled, from the benefit of the land, to his share of the crop, and the owner is entitled in proportion to his share. The benefit of the loan is the dropping of the wage: had he hired him to cultivate half the seed without lending him half the land, and the worker had cultivated all of it, he would owe him half the rent of the land.
• The second: the worker hires himself for half the seed at the usual wage, and for half the benefit of the land likewise, so as to cultivate the other half of the seed in the other half of the land for him; the two then become partners in the crop on equal halves, with no wage of one to the other: the worker draws from the benefit of the land the measure of his share of the crop, and the owner draws from his benefit the measure of his share. The difference between the two forms: in the first, the wage was made a determined object ('ayn), in the second an object and a benefit; in the first, one may retract after half the land has been cultivated and claim the wage, in the second not; if the land yields nothing within the term, in the first he owes the value of his half, not in the second, for the loan is guaranteed.

There is a third way, the most protective of the two parties: that the owner lend half the seed and rent half the land for half the worker's work and half the benefit of his tools. All this is when the seed belongs to the owner of the land; if it belongs to the worker, his way is to rent half the land for half the seed, half his work and half the benefits of the tools. If it is from both, the worker rents half the land for half its benefits and the benefits of the tools devoted to cultivation. In these hirings, visibility, the fixing of the term and the other conditions of hire must be observed (al-Bayan fi madhhab al-Imam al-Shafi'i 7/280, 282; Rawdat al-Talibin 3/788, 790; Mughni al-Muhtaj 3/364, 366; Nihayat al-Muhtaj 5/283, 286; al-Najm al-Wahhaj 5/297, 300; al-Dibaj 2/444, 445).

The validity of muzara'a among the Hanbalis

The Hanbalis say: muzara'a is permitted under conditions:

• 1. That the seed be known in kind and quantity, even if it is not weighed, known by sight or by a description that admits no dispute, like a tree in musaqat. If he says, “of whatever you plant in it, I have half,” it is valid, according to the hadith of Ibn Umar (may Allah be pleased with him and his father): “The Prophet (peace and blessings of Allah be upon him) made an arrangement with the people of Khaybar for half of what comes out of it of fruit or crop” (reported by al-Bukhari (2203) and Muslim (1551)).
• 2. That the seed come from the owner of the land, according to one of the two views, which is the school position; and the work from the other is accepted, for the two share in its growth; the capital must therefore come from one of them, as in mudaraba. Muzara'a is accordingly not valid if the seed comes from the worker, or from both of them (the worker and the owner of the land), or from one while the land is from both, or the seed from one and the land and the work from the other, or the land from one, the work from another and the seed from a third, or the land from one, the work from another, the seed from a third and the cattle from a fourth: in all these forms it is invalid, because the seed does not come from the owner of the land. Another narration: that the seed and the seedlings come from the owner of the land is not required in muzara'a and mugharasa; the worker may provide them, according to the view of Umar, Ibn Mas'ud and others; it is transmitted in one narration, authenticated in al-Mughni and in the Sharh, and chosen by Abu Muhammad al-Jawzi, then by the shaykh Taqi al-Din, Ibn Taymiyya, and the people act upon it; for the original argument relied upon in muzara'a is the story of Khaybar, and the Prophet did not state that the seed is upon the Muslims. Al-Bukhari mentioned, in suspended assertive form: “Umar contracted the people on this basis: if Umar brings the seed from himself, half is his; if they bring the seed, then thus and so” (mentioned by al-Bukhari in suspended assertive form, 2/280, chapter on sharecropping for half; reported by Ibn Abi Shayba (37016)). And Ibn Umar said: “The Messenger of Allah handed over to them the palm trees of Khaybar and its land on condition that they develop them with their own property” (reported by Muslim (1551)).

The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: this shows you that the muzara'a in which the seed comes from the worker is more entitled to be permitted than that in which it comes from the owner of the land; that is why the Companions of the Messenger of Allah contracted on this basis, as the Prophet made an arrangement with the people of Khaybar for half of what comes out of it of fruit and crop, on condition that they develop it with their own property.

As for those who required that the seed come from the owner of the land, they reasoned by analogy with mudaraba: in mudaraba the capital comes from one and the work from the other; so it should be in muzara'a; and they made the seed like the capital, as the land. This analogy, though it contradicts the Sunna and the sayings of the Companions, is among the most corrupt of analogies: in mudaraba the capital returns to its owner and the two divide the profit, so it is the counterpart of the land in muzara'a; as for the seed, which does not return to its owner, it goes away as the benefit of the land goes away: attaching it to the benefit that vanishes is more fitting than attaching it to the surviving principal. The contracting party who provides the seed loses his work and his seed, and the owner of the land loses the benefit of his land; the seed of this one is therefore like the land of that one.

Whoever made the seed like the capital should consequently restore its like to its owner, as they said of the capital in mudaraba; and had the owner of the seed stipulated that it return to him, they would not have permitted it (Majmu' al-Fatawa 20/510, 511).

According to the school, if the contract is void and the seed comes from the worker, the crop belongs to him entirely, because he is the owner of the seed: his property passes from one state to another; and the owner of the land owes him the rent of similar land, because he had contracted for what was named to him; when it fails, he reverts to its equivalent, since he did not consent to giving his land for nothing. If the seed is from both, the crop is for both according to their shares.

If the owner of the land stipulates taking the like of his seed and that they divide the remainder, it is not valid: it is as if he stipulated for himself a known amount (qufzan), a corrupt condition that corrupts the muzara'a; for the land may yield only that amount, which the owner would then monopolize, or yield nothing, whereas the contract rests on sharing.

If the seed comes from both in halves and they stipulate that the crop is between them in halves, the matter stands between the two views: if we hold the muzara'a valid, the crop is between them as they stipulated; if we hold it void, each takes according to his seed. But if we hold it valid, neither of them retroacts against the other for anything. If we hold that the provision of the seed by the owner of the capital is a condition of validity, the contract is void: the worker owes half the rent of the land, and the owner of the land owes him half the rent of his work; they offset each other by the lesser amount, and either retroacts against the other for the excess. If they stipulated disparity in the crop and we hold the contract valid, the crop is between them as they stipulated, with no retroaction; if we hold it void, the crop is between them according to their seeds, with retroaction as mentioned.

Likewise if they differed in the seed and stipulated equality in the crop, or stipulated for one of them more or less than his seed.

• 3. That there be stipulated for the worker a known undivided share of it, such as a third, a quarter or the like.
• 4. It is not permitted, without disagreement, to stipulate for him a surplus of dirhams over his property, to be taken from the produce.
• 5. Likewise, if it is stipulated for one of them the crop of a specified portion, or what is on the irrigation channels, alone or together with his share: this is void by the consensus of the scholars, for the report forbidding it is authentic, and because it leads to the ruin of what was assigned to one without the other, so that one of them monopolizes the produce over his partner.

It is valid that the land, the seed and the cattle come from one person and the work from another, by analogy with mudaraba: it is a contract on work in property for part of its growth, which resembles muzara'a on an existing crop that grows through work; it is therefore valid: if it is permitted in a nonexistent thing despite great gharar, it is more fitting in an existing thing despite little gharar.

Renting the land for gold, silver and non-food goods is permitted according to the view of most people of knowledge, based on what Hanzala ibn Qays al-Ansari reported:

I asked Rafi' ibn Khadij about renting land for gold and silver. He said: there is no harm in it. In the time of the Prophet (peace and blessings of Allah be upon him), people used to rent land against the water basins, the heads of the channels and portions of the crop, so that this would perish and that survive, and that survive and this perish; people had no other rent than this, and therefore it was discouraged. But a known, guaranteed thing, there is no harm in it.

Reported by Muslim (1547)

Ibn Abbas said: “The best you can do is to rent the bare land from year to year” (reported by al-Bukhari (2/73) in suspended form, and connected by al-Bayhaqi with an authentic chain (6/133)).

As for renting it for food, it is of three kinds, all of them permitted:

• The first: renting it for a known food other than what it produces: permitted.
• The second: for a known food of the kind of what it produces: also permitted.
• The third: for an undivided share of what it produces: also permitted (al-Mughni 5/244, 250; al-Kafi 2/297, 299; Majmu' al-Fatawa 29, 118, 121; I'lam al-Muwaqqi'in 1/276; al-Insaf 5/483; Kashshaf al-Qina' 3/637, 640; Sharh Muntaha al-Iradat 3/602, 604; al-Rawd al-Murbi' 2/86, 87; Manar al-Sabil 2/201, 203).

This is apparent in the zahir al-riwaya, and according to Abu Yusuf it is also permitted: if the seed and the cattle are stipulated upon him, it is permitted; so likewise if it is stipulated alone, for he then stands on the side of the worker (al-Hidaya 4/55; al-'Inaya 12/94; al-Ikhtiyar 3/94, 95; Tabyin al-Haqa'iq 5/280; al-Bahr al-Ra'iq 8/182; al-Jawhara al-Nayyira 4/250, 251; al-Lubab 2/6, 7; Mukhtasar al-Wiqa'a 2/196; Ibn Abidin 7/121).

The binding character of the muzara'a contract

The jurists debated the muzara'a contract: is it a binding contract, which neither contracting party may rescind without the other's consent, or a revocable one, which each may rescind without the other's consent? And does it bind from the contract itself or from the beginning of the work? The majority of the jurists, namely the Hanafis, the Malikis and the Hanbalis in general terms (with the details proper to each), held that the muzara'a contract does not bind from the contract: either party may rescind it before the work; and also after the beginning of the work, according to the Hanafis and the Hanbalis.

The Hanafis say: the contract is not binding on the side of the owner of the seed, and binding on the side of the other; even if he refuses after concluding a valid contract and says “I do not wish to cultivate the land,” he may do so, whether he has an excuse or not. If the other party refuses, he has no such right, except with an excuse; for the owner of the seed cannot carry on with the contract except by destroying his property, the seed that perishes in the soil, and no one is compelled to destroy his property. Likewise whoever the seed does not come from: the beginning of the work binds him, and he may not rescind except with an excuse, as in all other hirings, whether the cultivator ploughs or not, as stated in Bada'i' al-Sana'i'.

If the seed is cast into the ground, the contract becomes binding on both sides, and neither may rescind it except with an excuse.

Abu Yusuf: if the seed comes from the owner of the land and he has delivered it to the cultivator, neither of the two may annul the muzara'a; if he has not delivered the seed, the owner of the land may annul it, not the cultivator (Bada'i' al-Sana'i' 6/182; Tabyin al-Haqa'iq with the gloss of al-Shilbi 5/279; al-Fatawa al-Hindiyya 5/237; Lisan al-Hukkam 405).

Among the Malikis, the famous position of the school, which is the opinion of Ibn al-Qasim, is that muzara'a does not bind from the contract, and this is the usual formula: either of the contracting parties may rescind the contract of muzara'a as long as the seed has not been cast into the land. It therefore binds neither from the contract nor by work before the seed, however abundant (ploughing, levelling, watering), according to the most probable view; it binds by the sowing, even without prior work. The reason it does not bind from the contract, like the partnership of property, is that it was said to be prohibited, which weakened its standing; so a strong factor was required for its becoming binding, namely the sowing. If part of it is sown, the contract binds only as to what was sown, and either party may rescind as to the rest.

Sahnun, Ibn al-Majishun, Ibn Kinana, and Ibn al-Qasim in the book of Ibn Sahnun, held that it binds from the contract, giving precedence to the aspect of hire, because it revolves between partnership and hire.

This disagreement arose because muzara'a is a partnership of work, and the hire of each of the two leads to that of the other in its entirety, with no excess; so they differed over which prevails. Whoever gives precedence to the partnership holds that it does not bind from the contract, for a partnership of work binds only through work and is valid only on the basis of equivalence and balance, except that one of them may voluntarily give what does not exceed his hire. Whoever gives precedence to hire makes it binding from the contract, allows disparity between them and disregards equivalence.

There is a third opinion, followed in practice and in legal responses in Cordoba and al-Andalus: the contract binds from its conclusion when work is joined to it; if no work has begun, it does not bind. Ibn Rushd said: it is a view reported from Ibn Kinana, not an analogy but an istihsan, for in both cases one does not go beyond the two views; it resembles the narration of Ali ibn Ziyad from Malik that the ja'il (one who promises a reward) is bound by the ju'l from the beginning of the work unknown to him (al-Bayan wa-l-Tahsil 15/395, 396; al-Ma'una 2/138; al-Sharh al-Kabir with the gloss of al-Dasuqi 5/43; Tahbir al-Mukhtasar 4/272; Sharh Mukhtasar Khalil 6/63; Mawahib al-Jalil 7/128; al-Taj wa-l-Iklil 4/186; the gloss of al-Sawi with al-Sharh al-Saghir 8/50; Minh al-Jalil 3/336).

The Hanbalis hold that muzara'a is a revocable contract, rescindable by both parties, by analogy with mudaraba: it is a contract on a part of the growth of property, and it does not require the mention of a term; each of the two may rescind it whenever he wishes, according to the hadith of Ibn Umar (may Allah be pleased with him and his father):

Umar ibn al-Khattab expelled the Jews and the Christians from the land of the Hijaz. When the Messenger of Allah (peace and blessings of Allah be upon him) prevailed over the people of Khaybar, he intended to expel the Jews from it, whereas the land, after his victory, belonged to the Jews, to the Messenger and to the Muslims. The Jews asked the Messenger of Allah to let them stay on, working the land themselves, with half of the fruit for them. The Messenger of Allah said: we confirm you upon this for as long as we wish.

They were thus confirmed until Umar expelled them to Tayma and Ariha during his governorship.

Reported by al-Bukhari (2983) and Muslim (1551)

Had it been binding, no term could have been set, nor could the option of confirming them have been left for as long as one wished; and the Prophet was never reported to have set a term for them; had he set one, its transmission would not have been abandoned, for this is among the things that are needed, and a transmission may not be betrayed. Umar expelled them from the land and brought them out of Khaybar; had they had a fixed term, it would not have been permitted to expel them from it.

And because it is a contract on a part of the growth of property, it is revocable, like mudaraba. It is distinguished from hire, for hire is a sale of exchange, hence binding like the sale of objects, and its compensation is estimated and known, which makes it resemble sale; its analogy with hire is thus invalidated by the mudaraba, and it resembles musaqat more than hire, so the analogy with musaqat is more fitting.

It is like musaqat in ruling, as mentioned: when the fruit appears, it becomes the common property of the two, and the right of the worker does not fall from it through rescission or otherwise, as when a mudaraba is rescinded after the profit has appeared.

Whenever one of the two rescinds after the fruit has appeared, the fruit is between them as they stipulated, and the worker owes the completion of the work, as the mudarib is bound to sell the goods if the mudaraba is rescinded after the profit has appeared. If the worker rescinds before that, he has nothing, for he consented to the dropping of his right: he is like the worker of mudaraba who rescinds before the profit appears, or the worker of ju'l who rescinds before completing his work. If the owner of the capital rescinds before the fruit appears, he owes the worker the rent of the like, because he prevented him from completing the work by which he would earn his compensation: he resembles the one who rescinds a ju'l before its work is completed.

The owner of the capital here differs from his counterpart in mudaraba who rescinds before the profit appears; for the work of muzara'a leads, in most cases, to the appearance of the fruit: were it not for the rescission, the fruit would have appeared and he would have taken his share of it, which his rescission cut off; he thus resembles the rescission of ju'l, unlike mudaraba, for there it is not known that it leads to profit, and in mudaraba the initial work may have no effect at all on the profit once it appears.

The Hanbalis, according to the view chosen by the shaykh of Islam Ibn Taymiyya, hold that it is a binding contract: it is a contract of exchange, and is therefore binding, like hire; and had it been revocable, the owner could rescind it when the fruit forms, and the right of the worker would fall and he would be harmed; by the hadith: “Muslims are bound by their conditions” (reported by Abu Dawud (3594), judged good and authentic).

There is a third opinion: it is revocable from the side of the worker and binding from the side of the owner (al-Mughni 5/233, 234; al-Kafi 2/290; al-Mubdi' 5/49; al-Insaf 5/472; Kashshaf al-Qina' 3/631, 360; al-Rawd al-Murbi' 2/84; Manar al-Sabil 2/204, 205).

Is the mention of the term required in the contract of muzara'a?

The jurists differed over muzara'a: is the mention of a term required for it, or is it valid without mention of a term?

The Hanafis hold that the term must be known in muzara'a: it is not valid except after stating the term; for it is concluded as a hire and ends as a partnership; the contract reverts to the benefit of the owner of the land if the seed comes from the worker, and to the benefit of the worker if the seed comes from the owner of the land; and this benefit is known in amount only through the term, which thus becomes its measure.

Two conditions apply to the term: that it not be shorter than what allows cultivation; and that it not be such that neither of the two would likely live through it.

According to Muhammad, it is valid without stating the term, and it ends with the first crop that comes out. Ibn Abidin said: al-Faqih (al-Marghinani) took this view, and the fatwa is upon it; Muhammad only required the stating of the term in Kufa and the like, because its seasons vary with them, and its beginning and end are unknown to them. But al-Khaniyya says afterwards: the fatwa is upon the answer of the Kitab, that is, that the term is a required condition. The Shurunbulaliyya notes that the two works thereby stand in contradiction; and it is concluded: where each of the two views is sound, one does not depart from the established position (Ibn Abidin 6/275; Tanqih al-Fatawa al-Hamidiyya 6/212; Bada'i' al-Sana'i' 6/180; al-Hidaya Sharh al-Bidaya 4/59; al-Ikhtiyar 3/94).

The Hanbalis hold, in the school, that muzara'a does not require the mention of a term, and that each of the two may rescind it whenever he wishes; for the Prophet was never reported to have set a term for them, and had he set one, its transmission would not have been abandoned, for this is among the things that are needed; Umar expelled them from the land and brought them out of Khaybar, and had they had a fixed term, it would not have been permitted to expel them from it. He then cites the hadith of Ibn Umar reported above (reported by al-Bukhari (2983) and Muslim (1551)). According to another view among the Hanbalis, a term is required, according to the choice that the contract is binding (al-Mughni 5/233, 234; al-Kafi 2/290; al-Mubdi' 5/49; al-Insaf 5/472; Kashshaf al-Qina' 3/631, 360; al-Rawd al-Murbi' 2/84; Manar al-Sabil 2/204, 205).

The conditions that corrupt the muzara'a

The jurists have specified several conditions which, if stipulated in the muzara'a, corrupt it; some of them have already entered into the statement of the conditions of validity. They are as follows:

1. Stipulating that the produce belong to one of them alone. If it is stipulated that the produce belong to one of them alone, and the other takes nothing of it, the muzara'a is void; for one of the conditions of its validity is that the produce be between the two contracting parties; and every condition that cuts off the partnership corrupts the contract, by the agreement of the jurists.

The Malikis, however, permit a voluntary gift of the surplus of work or profit after the partnership has become binding through the seed, after a valid contract (Bada'i' al-Sana'i' 6/180; al-Fatawa al-Hindiyya 5/235; al-Sharh al-Kabir with the gloss of al-Dasuqi 5/43, 48; Tahbir al-Mukhtasar 4/272, 276; Sharh Mukhtasar Khalil 6/63, 66; Mawahib al-Jalil 7/128, 131; al-Taj wa-l-Iklil 4/186, 192; the gloss of al-Adawi 2/280; the gloss of al-Sawi with al-Sharh al-Saghir 8/52, 55; Kashshaf al-Qina' 3/628).

2. Stipulating for one of them a known amount (qufzan). The contract is not valid; likewise, if they mention a prevailing share and stipulate in addition fixed known amounts, the muzara'a is not valid by the consensus of the scholars. On this basis, if they stipulate for one of them the seed for himself and that the remainder be between them, the muzara'a does not stand, for the land may produce nothing more than the amount of the seed (Bada'i' al-Sana'i' 6/177; al-Fatawa al-Hindiyya 5/235; al-Mughni 5/246; al-Mubdi' 5/58; Kashshaf al-Qina' 3/640; Sharh Muntaha al-Iradat 3/612).

3. Stipulating for him a surplus of dirhams over his property. The muzara'a is void by the consensus of the scholars, for it may happen that the growth does not reach those dirhams, and the owner or the worker would be harmed; the musaqat likewise is void and not permitted (Bada'i' al-Sana'i' 6/177; al-Hindiyya 5/235; al-Mabsut of al-Sarakhsi 23/160; al-Jawhara al-Nayyira 4/252; Bidayat al-Mujtahid 2/187; al-Awsat of Ibn al-Mundhir 6/73; al-Mughni 5/238, 246; al-Mubdi' 5/58; Kashshaf al-Qina' 3/640; Sharh Muntaha al-Iradat 3/612).

4. Stipulating for one of them the crop of a specified portion. If one gives land in sharecropping on condition that the owner of the land have a specific crop and the worker another, for example a specified portion for one and another for the other, or if one stipulates what is on the channels and the irrigation rigs, alone or together with his share: this is void by the consensus of the scholars, for the authentic report forbidding it is neither contradicted nor abrogated, and because it leads to the ruin of what was assigned to one without the other, so that one of them monopolizes the produce over his partner. This is why the Prophet forbade the muzara'a in which a specific place is set for the owner of the land and a specific place for the worker. Rafi' ibn Khadij (may Allah be pleased with him) said:

We used to rent land on condition that this part be ours and that part theirs; sometimes this part yielded and that one did not; we were forbidden to do so; as for silver, he did not forbid us.

Reported by al-Bukhari (2573) and Muslim (1547)

5. Ignorance of the share of the produce of each. The jurists agreed that, for validity, the share of each of the two must be known in amount: half, a third, a quarter or the like; for leaving it unestimated leads to dispute. Among the Hanafis and the Hanbalis, the produce may vary: any ratio they agree upon is valid.

The Malikis, however, require equality in profit according to what each contributes: if the rental value of the land is 100 and that of the cattle and labor 50, it is valid that the landowner take two thirds and the other one third, and invalid that they take half; and likewise in reverse; if the land is 50 and the work 50, an agreement on a third and two thirds voids the contract.

The intended equality is the conformity of the profit to the contribution, not half for each: if the contributions are equal, the profit must be shared half and half; if the contribution of one exceeds that of the other, he must take a profit in proportion, otherwise the contract is void. The voluntary gift of the surplus after the contract has become binding remains permitted (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/43, 48; Tahbir al-Mukhtasar 4/272, 276; Sharh Mukhtasar Khalil 6/63, 66; Mawahib al-Jalil 7/128, 131; al-Taj wa-l-Iklil 4/186, 192; the gloss of al-Adawi on Sharh Kifayat al-Talib al-Rabbani 2/280; the gloss of al-Sawi with al-Sharh al-Saghir 8/52, 55; al-Bahja fi sharh al-Tuhfa 2/335; Bada'i' al-Sana'i' 6/186; al-Hindiyya 5/235; al-Mughni 5/228; Kashshaf al-Qina' 3/628).

6. Ignorance of the land.

The Hanafis require that the land be known: if it is unknown, the muzara'a is not valid, for that leads to dispute. If the land is given in sharecropping on condition that whatever wheat is sown in it be at such a rate, and whatever barley, at such another, the contract is void, because what is sown in it is unknown: the word “of” indicates partition, so it falls on part of the land, and that is not known. Likewise if he says, “on condition that he sow part of it with wheat and part with barley,” for insisting on partition is insisting on ignorance.

If he says, “on condition that if you sow wheat in it, it is at such a rate, and if barley, at such another,” it is valid: he made the whole land the setting for the wheat or the barley crop, and the ignorance disappeared. And if he says, “if he sows wheat, at such a rate; if barley, at such another; if sesame, at such another,” without saying “of it,” it is valid: there is no ignorance of what is sown in it, and the momentary ignorance of the crop is not harmful, for he delegated the choice to him: whichever of these he chooses, the contract becomes specified by his actual choice. And if he sows part of it with wheat and part with barley, it is valid: had he sown all of it with wheat or all with barley, it would be valid, so all the more part with part (Bada'i' al-Sana'i' 6/178; al-Hindiyya 5/236).

7. Ignorance of the kind of seed.

The Hanafis and the Hanbalis require that the seed be known in kind, even if not weighed, known by sight or by a description that admits no dispute, like a tree in musaqat. For the state of the sown land varies with the variation of the crop, in increase and decrease: some crops enrich the land, others deplete it, and the depletion may be slight or great; so it must be specified, so that the liability for harm is attached to the commitment; unless he says to him, “sow in it whatever you wish”: then he may sow in it whatever he wants, for by delegating the matter to him he consented to the harm; except that he may not plant trees, for what enters under the contract is the crop, not the tree. According to the hadith of Ibn Umar (reported by al-Bukhari (2203) and Muslim (1551)) (Bada'i' al-Sana'i' 6/177; al-Ikhtiyar 3/94; al-Hindiyya 5/236; Durrar al-Hukkam 3/497; al-Mughni 5/229; Sharh Muntaha al-Iradat 3/610, 611; Manar al-Sabil 2/201, 202).

8. Ignorance of the quantity of the seed.

The Hanbalis and the Hanafis, in one view, as chosen by al-Mawsili in al-Ikhtiyar, hold that the quantity of the seed must be known for the validity of the muzara'a; for it is a contract on work, and cannot stand on an estimated gharar, like hire. The Hanafi school, however, holds that knowledge of the quantity of the seed is not required, because it becomes known from the information given by the land (al-Ikhtiyar 3/94; al-Hindiyya 5/235; al-Durr al-Mukhtar 6/276; Durrar al-Hukkam 3/495; Sharh Muntaha al-Iradat 3/610, 611; Manar al-Sabil 2/201, 202).

9. Stipulating the work upon the owner of the land alone.

The Hanafis and the Hanbalis state that validity requires that the work not be stipulated upon the owner of the land alone: if the work is stipulated upon him, the contract is void; likewise, among the Hanafis, stipulating the work of the owner together with the worker is not valid, because that prevents the delivery, that is, the leaving of the land free.

The Hanbalis say: if the work of the owner or of his servant together with the worker is stipulated in musaqat and muzara'a, to assist him, it is valid, like stipulating upon him the work of a beast; and the work of the owner without stipulation does no harm.

If the worker stipulates that the wage of the helper he takes on be taken from the price of the fruit, whether he estimates the wage or not, it is not valid, as if he stipulated for himself the wage of his own work: the work is upon him, so a stipulation of its compensation is not valid (Bada'i' al-Sana'i' 6/180; al-Mabsut 23/19; Majma' al-Anhar 4/141; al-Durr al-Mukhtar 6/276; 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).

As for the Malikis, muzara'a with them is a partnership between two who are equivalent in work, expense, land and seed: Qadi Abd al-Wahhab (may Allah have mercy on him) restates here the description already given (equivalence of contributions; if the seed comes from one and the land from the other, it is not permitted; the crop belongs to whoever takes charge of it, with the guarantee of the like of the seed or half the rent of the land; the land may be common or belong to one, with the cattle and the expense from the other and the seed from both), the essential being to guard against anything that amounts to renting the land for food or for part of what comes out of it, or the absence of equivalence (al-Ma'una 2/137, 138; and the references already cited).

10. Stipulating the fodder for other than the owner of the seed. The jurists debated: if the fodder is stipulated for one of the two, is the muzara'a thereby void or not? The Hanafis say: it is void if the fodder is stipulated for the one from whom the seed does not come. The question comes down to three cases:

• First case: they stipulate the fodder and its like (firewood) between them: this is beyond doubt permitted, for it is an established condition and required by the contract, since the sharing of the produce of the crop is among the effects of this contract. If they remain silent about it: according to Abu Yusuf the contract is void; according to Muhammad it is not void, and the fodder belongs to the owner of the seed; al-Tahawi mentions that Muhammad retracted to the view of Abu Yusuf. Muhammad's reasoning: what the owner of the seed deserves, he deserves by his seed, not by the condition, so silence is like stipulation. Abu Yusuf's reasoning: each of the two things, the grain and the fodder, is intended by the contract; silence about the fodder is like silence about the grain, which is void by consensus. The shaykhs of Balkh say: the fodder is also between them, in consideration of custom regarding what the contracting parties did not specify, and because it is the appendage of the grain, and the appendage stands as the condition of the principal.
• Second case: they stipulate the fodder for one of them alone: if they stipulate it for the owner of the seed, it is permitted and it is his, for he deserves it without any condition, it being the growth of his property; the condition only confirms it.
• Third case: they stipulate the fodder for one who has no seed: the muzara'a is void; for the entitlement of the owner of the seed to the fodder comes by the seed, not by the condition, the growth of a man's property being his property; so stipulating the fodder for one who has no seed is like stipulating the grain for him, which is void by consensus; and because this condition leads to cutting off the partnership if nothing but the fodder comes out (Bada'i' al-Sana'i' 6/181; Mukhtasar Ikhtilaf al-'Ulama' 4/25, 26; al-Jawhara al-Nayyira 4/253; Majma' al-Anhar 4/141; al-Durr al-Mukhtar 6/277; al-Hindiyya 5/237).

As for the Malikis, the produce of the land is between the worker and the owner of the land according to the share of each, as set out above. It is stated in al-Mudawwana al-Kubra, concerning the by-products of the palms in musaqat: “I said: what do you see regarding the by-products of the palms, their spathes and their fibers, whose are they? He said: I see them as between the two of them. I said: in proportion to what they have contracted?

He said: yes. I said: what do you see regarding a crop given in sharecropping: whose is the fodder? He said: I see it as being like the by-products of the palms, and Malik said: the by-products of the palms are between the two of them, and the fodder, in my view, holds the same position. I said: what do you see regarding what falls from the fruits, such as fresh dates and the like, whose is it?

He said: I see it as like the by-products of the palms” (al-Mudawwana al-Kubra 12/14; Sharh Mukhtasar Khalil 6/66; the gloss of al-Adawi 2/280; Mukhtasar Ikhtilaf al-'Ulama' 4/25, 26).

The Shafi'is say: if the fodder and the grain are stipulated between them, it is permitted; likewise if the grain is stipulated between them and the fodder for one of them, for they share in what is intended. If the fodder is stipulated for the owner of the oxen, who is the owner of the land, and the grain for the other, it is not permitted, for the owner is the principal and is not deprived of what is intended. If the fodder is stipulated for the owner of the seed, who is the worker, there are two views; and it has been said: it is not permitted at all to stipulate the grain for one and the fodder for the other (Rawdat al-Talibin 3/790).

11. Stipulating the harvest and the threshing. The scholars debated the harvest, the threshing (diyas) and the winnowing (tadhriya): do they fall upon the owner, upon the worker, or upon both together? And is their stipulation valid or not?

The Hanafis and the Hanbalis, in the school, hold that the harvest, the threshing and the winnowing fall upon the owner and the worker in proportion to their respective rights, for they occur only after the fruit is complete and the irrigation has ended.

They then differed: if the harvest, the raising of the threshing floor (rafa' al-baydar), the threshing and the winnowing are stipulated upon the worker, is that valid or not? The Hanafis, in the school: if these works are stipulated upon the worker, the muzara'a is void; if any of them is stipulated upon the owner of the land, the contract is void by consensus, for want of custom.

The principle is that any work required by the crop before it reaches its limit, is harvested and dries, and which relates to its improvement, such as watering, guarding, the pulling up of weeds, the digging of channels and the levelling of the raised sections and the like, falls upon the cultivator: for the purpose of the crop, namely the growth, is not ordinarily obtained without it; it is therefore an appendage of the object of the contract, and thus of the work of muzara'a, and it falls upon the cultivator. Any work that occurs after the crop has reached its limit, been harvested and dried, before the division of the grain, and which is needed to separate and clean the grain, such as the harvest, the threshing and the like, is between the two according to the condition of the produce; it is not part of the work of muzara'a. Any work that occurs after the division, such as carrying it home and the like, needed to preserve what has been divided, falls upon each in his share; for that is the charge of his property, and it binds him alone.

The Hanbalis and Abu Yusuf hold that the stipulation of the harvest, the raising of the baydar, the threshing and the winnowing upon the cultivator is valid, because of the practice of the people and because it does not harm the interest of the contract. The Hanafi jurists of Transoxiana give the fatwa accordingly; it is the choice of Nasir ibn Yahya and Muhammad ibn Salama, among the shaykhs of Khurasan. Al-Sarakhsi said: it is the soundest view in our lands. Ibn Abidin reports that the shaykh imam Abu Bakr Muhammad ibn al-Fadl used to say, when asked about this question: there is a manifest custom; whoever does not wish to be obstructed should act by the custom and let no one prevent it.

Where the harvest is customarily upon the worker, if he delays it and neglects it until it perishes, Abu Bakr al-Balkhi says he guarantees it, and the jurist Abu al-Layth says: if he delays with an excessive delay such as people do not resort to, he is liable, otherwise not; this is when these works are stipulated upon the worker; if any of them is stipulated upon the owner of the land, the contract is void according to all (Tanqih al-Fatawa al-Hamidiyya 6/225, 226; Ibn Abidin 6/282; Bada'i' al-Sana'i' 6/180, 181; al-Bahr al-Ra'iq 8/186; al-Ikhtiyar 3/97; al-Jawhara al-Nayyira 4/258, 259; Mukhtasar al-Wiqa'a 2/197; al-Hindiyya 5/277; al-Mughni 5/232; al-Sharh al-Kabir 5/591; Kashshaf al-Qina' 3/634, 640; al-Rawd al-Murbi' 2/85; Manar al-Sabil 2/207).

As for the Malikis, al-Mawaq (may Allah have mercy on him) reports that al-Mutayti said: if the custom of the country is that the harvest, the threshing and the cleaning are upon the worker, and that all of this, together with the whole of the work, equals the rent of the land, it is permitted according to the view of Ibn al-Qasim, which Sahnun did not permit, for he does not know how it will turn out. The contract is concluded according to the view of Ibn al-Qasim upon the worker: after the ploughing and the sowing, whatever the crop needs in service, watering, cleaning, harvesting, transport to the threshing floor, threshing and cleaning until it becomes grain free of impurity; they then divide it by measure (al-Taj wa-l-Iklil 4/187).

The produce between the two according to the stipulated condition

The seed is not part of the work: it runs like what is used for the pollination of the palms, and its distribution in the land falls upon the worker as pollination does. If the two concluded the contract without specifying what falls upon each, each bears what we have said falls upon him; if they stipulated it, that is only a confirmation. If they stipulate upon one of them something that binds the other, the Qadi and Abu al-Khattab say: it is not permitted; the contract is thereby void, for it is a condition contrary to the requirement of the contract, as in mudaraba if the work were stipulated upon the owner of the capital.

It has nevertheless been reported from Ahmad what indicates its validity: he mentioned that the cutting of the ears (jidhadh) falls upon both, and that if it is stipulated upon the worker it is permitted; this is the import of the words of al-Khiraqi concerning mudaraba: a condition that does not harm the interest of the contract nor corrupt it, so it is valid, like the deferment of the price in a sale, or the stipulation of a pledge, a guarantor or an option in it. It is only required that the work imposed upon each be known, so that it does not lead to dispute and shirking, which would spoil the work; and that what is upon the owner of the capital not exceed the work: for the worker earns only by his work, and if he does not perform the whole of the work, the presence of his work equals its absence, and he deserves 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; al-Rawd al-Murbi' 2/85; Matalib Uli al-Nuha 3/523, 568).

3. The produce between them according to the stipulated condition. The jurists agreed that, if the muzara'a is valid and the land produces something, the produce is between them; they differed only as to whether it is divided according to the stipulated condition or according to the proportion of the contributions.

The Hanafis and the Hanbalis say: if the muzara'a is valid, the produce is between them according to the stipulated condition, a half, a third or the like; for the condition is valid, and its fulfillment is binding, according to the saying: “Muslims are bound by their conditions” (reported by Abu Dawud (3594), judged good and authentic) (Bada'i' al-Sana'i' 6/282; al-Hidaya 4/56; al-Ikhtiyar 3/95; al-Jawhara al-Nayyira 4/254; Majma' al-Anhar 4/144; al-Lubab 2/9; al-Hindiyya 5/237).

The Malikis say: the produce is between them according to the proportion of what each contributes, each taking of the profit according to what he puts in. The partnership is not valid if their contributions are equal while they stipulate in the contract that everything obtained from the crop is on a third and two thirds, or that what they contributed is on a third and two thirds, or that what is obtained from the crop is shared equally.

Thus, if the rent of the land is 100 and the rent of the work of cattle or other, apart from the seed, 100, and they agree that the profit is shared half and half, or one contributes the equivalent of 50 and the other the equivalent of 100, with two thirds of the profit for the owner of the 100 and one third for the owner of the 50: if in the first case they agree on a third and two thirds, and in the second on half and half, the contract is void (al-Ma'una 2/137, 138; al-Sharh al-Kabir with the gloss of al-Dasuqi 5/43, 48; Tahbir al-Mukhtasar 4/272, 276; Sharh Mukhtasar Khalil 6/63, 66; al-Taj wa-l-Iklil 4/186, 192; the gloss of al-Sawi with al-Sharh al-Saghir 8/52, 55).

The freedom to add to the stipulated condition

If they are silent about the work, one considers: if the land ordinarily produces a crop without ploughing, a customary crop sought according to the practice of the people, the cultivator is not compelled to plough. If it produces nothing at all, or produces only a little, such as is not sought through work, he is compelled to plough, for the muzara'a contract in its unspecified form bears upon the customary cultivation. On this basis, if the cultivator refuses to water and says, “I shall leave it for the sky to water,” the same distinction applies: if the crop is content with the water of the sky and ordinarily produces without it, he is not compelled to water, even though watering would be better; if it is not content with it, he is compelled to water (Bada'i' al-Sana'i' 6/282; al-Hindiyya 5/237).

6. The freedom to add to the stipulated condition.

The Hanafis say: the principle is that whatever the creation of the contract can bear, the addition can bear; and what it cannot bear, cannot; the decrease (hatt) is permitted in both cases, as is the increase of the price in sale. The addition and the decrease in muzara'a take two forms: they come from the cultivator, or from the owner of the land; and the seed comes either from the cultivator, or from the owner of the land after he has harvested the crop, or before. If the addition takes place after the harvest, the seed coming from the worker, the ruling is detailed according to the form of the contract.

Nothing of the works of muzara'a is incumbent upon the cultivator

The Hanafis say: if the muzara'a is void, the following rulings follow from it:

• 1. Nothing of the works of the muzara'a is incumbent upon the cultivator, for its obligation came from the contract, which is not valid (Bada'i' al-Sana'i' 6/282; al-Hindiyya 5/237).
• 2. The produce belongs entirely to the owner of the seed. The Hanafis and the Hanbalis say: when the muzara'a is void, the produce belongs in its entirety to the owner of the seed, whether he is the owner of the land or the cultivator; for the entitlement of the owner of the seed to the produce is due to its being the growth of his property, not to the condition: ownership suffices without any condition, whereas entitlement to the wage comes by the condition, that is, the contract; the contract not being valid, the owner of the property is entitled to it, and he is not bound to give anything of it in charity, for it is the growth of his property. If the seed comes from the owner of the land, he owes the worker the rent of the like: he obtained all his benefit through a void contract, having given his benefits in return for a compensation that was not delivered to him; he therefore reverts to its equivalent, the rent of the like. According to Abu Hanifa and Abu Yusuf, nothing is added beyond the stipulated amount of the produce, because he consented to the falling away of the increase. The Hanbalis and Muhammad (may Allah have mercy on him) say: he has the rent of the like up to whatever was reached; for he obtained his benefits through a void contract, so their value is owed by him, since no like exists. This is when the share of each of the two is equal in the contract; otherwise the rent of the like is owed in full by consensus. If the seed comes from the worker, the owner of the land has the rent of similar land: this is mukhabara; the worker obtained the benefit of the land through a void contract, so he is like a hirer; the hire being void, he owes the rent of similar land. The Hanbalis add: if the seed is from both, the crop is for the two of them, and they offset against each other the excess of the rent of similar land owed for the share of the worker, and the wage of the worker for his work upon the share of the owner of the land (Bada'i' al-Sana'i' 6/283; al-Hidaya 4/56; al-Ikhtiyar 3/96; al-Jawhara al-Nayyira 4/255; Majma' al-Anhar 4/144; al-Lubab 2/10; al-Hindiyya 5/237; al-Mubdi' 5/58; Kashshaf al-Qina' 3/640; Sharh Muntaha al-Iradat 3/614; Manar al-Sabil 2/205).

The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: if the muzara'a, the musaqat or the mudaraba is void, the worker is entitled to the like-share, that is, what custom gives in similar cases, not the rent of the like (al-Ikhtiyarat, p. 220). He says in Majmu' al-Fatawa: the sounder of the two views is that these partnerships, when void, owe the like-share, not the rent of the like: a third or a half of the profit or of the growth, as custom runs in similar cases; no estimated wage is owed, for that might swallow up the property and its multiples; in void contracts, the counterpart of what is owed in valid contracts is owed, and what is owed in the valid is not a named wage, but a prevailing share of the profit with a name: its counterpart is therefore owed in the void one (Majmu' al-Fatawa 28/84, 85).

As for the Malikis: if the muzara'a turns out void because one of its conditions of validity is defective, it is rescinded before the work. If the work has taken place: if the two worked together on an equal footing, the seed coming from one and the land from the other, the crop is between them; and they offset against each other for the rest, rent and seed: the owner of the seed owes half the rent of his partner's land, and the owner of the land half the measure of the seed. If only one of them worked, having with his work either the land, or the seed, or a part of each, the contract is void in every case because of the disparity, and the worker takes the whole of the crop: whether he has with his work the land, the seed, a part of each, the land or the seed being common or belonging to one of them, with the work upon one of them. The cause of the voidness is the disparity.

The worker to whom the whole of the crop is adjudged owes the like of the seed if he had with his work the land and the seed came from its owner, or a part of the land: as if the land were between them and its owner provided the seed, part of the seed being matched against part of the land; the crop goes to the worker, who owes its owner the like of the seed. Or he owes the rent of the land, or the cattle with which the other worked alone, if he had with his work the seed, the land coming from its owner, alone or together with the cattle. If the worker had neither seed nor land, but his hand work alone, as in the question of the fifth contracted with the wording of hire or without specification, he has nothing of the crop: he has only the wage of his work, and the crop belongs to the owner of the land and to the owner of the seed.

This is all the famous position of the school. The school contains six views concerning the muzara'a when it is void:

• The first: the crop belongs to the owner of the seed, and he owes those who contributed the rent of what they contributed.
• The second: the crop belongs to the owner of the hand work.
• The third: it belongs to whoever has two of the three things: land, cattle and hand work.
• The fourth: to whoever has two of the four: land, cattle, hand work and seed.
• The fifth: it belongs to the sower, if the voidness is that of mukhabara, that is, the renting of the land for what comes out of it; if it is otherwise, it belongs to the three according to their stipulation.
• The sixth, the preferred one, being the position of Ibn al-Qasim and chosen by Muhammad: the crop belongs to whoever has two of the three: seed, land and hand work. If they are three, and each has two things, or each of them alone has one of them, the crop is divided into three thirds; if one of them has two things without the two others, it belongs to him alone; if two of them together have two things, it belongs to them without the third. The forms of the view of Ibn al-Qasim are four for the case of three partners (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/49, 51; Sharh Mukhtasar Khalil 6/67, 68; Tahbir al-Mukhtasar 4/276, 277; Mawahib al-Jalil 7/131, 132; al-Taj wa-l-Iklil 4/192, 193; al-Fawa'ih al-Dawani 2/129; the gloss of al-Sawi with al-Sharh al-Saghir 8/59, 61).

The expenses of the crop after the expiry of the term, and the rescission

The expenses of the crop, such as the wage of watering and the like, fall upon the two in proportion to their respective rights; and this occurs only after the expiry of the term: before that, they are upon the worker alone, as stated above.

Fourth case: the death of one of the contracting parties. If one of the two contractors dies, the muzara'a is annulled by consideration of hire, whether the death occurs before the cultivation of the land or after it, and whether the crop is green or has reached the harvest and maturity. The rescission takes two forms: either it occurs before the cultivation, or after it.

The rescission before the cultivation: if it is rescinded before the cultivation, the worker has nothing, even if he ploughed the land, dug the channels and levelled the raised sections, whatever the mode of rescission: explicit, implied, through the expiry of the term or the death of one of the contracting parties; for the effect of the rescission appears in the future, through the end of its effect, and not in the past: nothing shows that the contract was not valid; what was due in the valid named contract, a part of the produce, was not produced, so there is nothing. It has been said: this is the answer of the ruling; as for what is between him and Allah the Most High, he must satisfy the worker if he withheld from carrying on with the contract before the cultivation: the withholding is not lawful religiously, for it resembles deception, which is forbidden.

The rescission after the cultivation involves two situations:

• First situation: the rescission after the crop has reached maturity: if it occurs after the crop has reached the stage of harvest, the harvest and the produce are between them according to the condition they agreed upon.
• Second situation: the rescission before the crop reaches maturity, the crop being still green: the answer is the same for the explicit rescission, its implication and the expiry of the term: the crop is between them according to the condition, and the work for what remains until the time of the harvest falls upon the two. The cultivator owes the owner of the land the rent of the like of half the land. The crop remains between them according to the condition, because the rescission of the contract shows its effect in the future, not in the past, so the crop remains as it was before the rescission. The work until the harvest falls upon the two because it is work upon joint property in which work was not stipulated upon one of them. The cultivator owes the rent of the like of half the land because the contract has been dissolved: the uprooting would harm the cultivator, and the abandonment without a wage would harm the owner, so the abandonment against the rent of the like takes both parties into consideration.

Unlike the case where the owner of the land dies while the crop is green: there the work falls upon the cultivator alone, for the contract is dissolved in reality, the cause of dissolution being present, namely the death, while it is retained by presumption to ward off harm from the cultivator: were it dissolved, the owner of the land would have the right to uproot the crop, which would harm the cultivator; so the contract is deemed to persist, and the work falls upon the cultivator alone, as before the death.

If one of the two incurs expenses without the consent of his partner and without the order of the judge, he is a volunteer: he retroacts against no one. If the owner of the land wants to take the crop green, he is not permitted to, for that would harm the cultivator. If the cultivator wants to take it green, the owner of the land stands before three options:

• 1. If he wishes, he uproots the crop, and it is then between the two of them.
• 2. If he wishes, he gives the cultivator the value of his share of the crop.
• 3. If he wishes, he himself spends on the crop from his property, then retroacts against the cultivator for his share, for that takes both parties into consideration.

All of this belongs to the Hanafi school (Bada'i' al-Sana'i' 6/283, 285; al-Hidaya 4/57; Tabyin al-Haqa'iq 5/114; al-Bahr al-Ra'iq 8/13; al-Ikhtiyar 3/98; Mukhtasar al-Wiqa'a 2/197; al-Jawhara al-Nayyira 4/256, 257; Majma' al-Anhar 4/144; al-Lubab 2/11; al-Hindiyya 5/237).

The effect of the death of one of the contracting parties

Example: if the owner of the land dies after having given it in sharecropping for three years, and the crop has grown and become green, the land is left in the possession of the cultivator until the time of the harvest, and is then divided according to the stipulated condition; for leaving it until the harvest takes both parties into consideration, and the uprooting would harm one of them, the cultivator; the work falls upon the cultivator alone, the contract being deemed to persist for this year and for this crop.

If it is the cultivator who dies while the crop is green, his heirs say: we shall work according to the condition of the muzara'a, and the owner of the land refuses; the matter then rests with the heirs of the cultivator, for the uprooting would harm the heirs, while there is no harm to the owner of the land in leaving it until maturity; and the heirs have no wage for their work: they work by virtue of the presumed contract of their father, as if their father himself were working, and his work would not have been remunerated, so it is the same for them. If the heirs wish to uproot the crop, they are not compelled to work, for the contract is dissolved in reality, but it is retained by their own choice for their benefit. If they refrain from working, the crop remains common:

• either it is divided between them according to the shares;
• or the owner of the land gives them their share of the crop green;
• or he spends from his own property until the harvest and then retroacts against them for their shares, for that takes both parties into consideration.

This whole development belongs to the Hanafi school (Bada'i' al-Sana'i' 6/283, 285; al-Hidaya 4/57; Tabyin al-Haqa'iq 5/114; al-Bahr al-Ra'iq 8/13; al-Ikhtiyar 3/98; Mukhtasar al-Wiqa'a 2/197; al-Jawhara al-Nayyira 4/256, 257; Majma' al-Anhar 4/144; al-Lubab 2/11; al-Hindiyya 5/237).

As for the Hanbalis, according to the school, the muzara'a is a revocable contract, not a binding one: it is dissolved by the death, the madness or the interdiction for prodigality of either party; if the worker or the owner of the capital dies, the muzara'a is dissolved, and the ruling is as if one of them had rescinded it. According to the view that it is binding, the contract is not dissolved by the death of one of them, and the heir stands in the place of the deceased, for it is a binding contract resembling hire.

According to the first view, if the deceased is the worker and his heir refuses to stand in his place, he is not compelled: the heir is bound by the rights of his deceased only to the extent that the estate can discharge them, and work is not among such things; so the judge hires from the estate someone to perform the work; if there is no estate, or the hiring from it proves impossible, the owner of the capital has the right of rescission, for the performance of what was contracted has become impossible, as when the price of a sale becomes impossible before taking possession.

If the fruit has appeared, one sells from the share of the worker what is needed to hire the remaining work; and if need be, the whole is sold. Then there are two cases: the fruit has begun to be sound, or it has not. If it has begun to be sound, the owner is given the choice between selling and buying: if he buys the share of the worker, it is permitted; if he chooses to sell his own share as well, he sells it, and the judge sells the share of the worker; if he refuses both to sell and to buy, the judge sells the share of the worker alone; the remaining work is let out on hire, and the surplus goes to his heirs. If the fruit has not begun to be sound, the owner is likewise given the choice; if it is sold to a stranger, it is not permitted except with the condition of severance, and the sale of the share of the worker alone is not permitted: for it cannot be severed without severing the share of the owner, so that the possibility of severance would come to rest upon the severance of another's property.

May the owner buy it? Two views. The same ruling applies if the musaqat is dissolved by the death of the worker, according to our view of its validity, and the heir refuses to work.

If the owner of the capital chooses to continue the muzara'a, the contract is not dissolved according to the view that it is binding; the permission of the judge is sought for spending upon the fruit, and he retroacts for what he has spent; if he is unable to seek the permission of the judge and spends, counting upon Allah with the intention of retroaction, having the spending witnessed on condition of retroaction, he retroacts for what he has spent, for he is in necessity. If he is able to seek the permission of the judge but spends with the intention of retroaction without seeking it, does he retroact? Two views, based on the rule of paying a debt without permission. If he spends voluntarily, he retroacts for nothing, as with voluntary charity; and the ruling on spending upon the fruit after the rescission of the contract, when its sale is impossible, is the same as here (al-Mughni 5/235, 236; al-Kafi 2/290; al-Mubdi' 5/51; Kashshaf al-Qina' 3/361, 362; Matalib Uli al-Nuha 3/563).