Muwatta Malik (Yahya)

It is narrated from Sulayman bin Yasar that the Messenger of Allah, peace and blessings be upon him, used to send Sayyiduna Abdullah bin Rawahah, may Allah be pleased with him, to Khaybar. He would assess the fruits and the lands. Once, the Jews gathered the jewelry of their women and began to give it to Sayyiduna Abdullah bin Rawahah, may Allah be pleased with him, saying: "Take this, but reduce our share of the produce." Sayyiduna Abdullah bin Rawahah, may Allah be pleased with him, said: "O Jews! Among all of Allah’s creation, I consider you the most despicable, yet even so, I do not wish to wrong you. And what you are giving me as a bribe is unlawful, and we do not consume it." At that time, the Jews said: "It is because of this that the heavens and the earth still remain established."

Imam Malik, may Allah have mercy on him, said that when a person takes a date orchard as musaqat and there is vacant land in that orchard, then whatever that person sows in the vacant land will belong to him. If the owner of the land puts a condition that he will sow in the vacant land, then it is not correct, because the worker will also have to water that crop, and this is an addition to the contract. However, if the cultivation is shared between both, then there is no objection, provided that the labor, seeds, and preparation of the land are the responsibility of the worker, and the other person only owns the land. If the worker puts a condition to the owner of the land that you provide the seeds, then this is not correct. Rather, musaqat is only valid in such a way that all the labor and so on is the responsibility of the worker.

Imam Malik, may Allah have mercy on him, said that if a water spring is jointly owned by two people and then its water stops, and now one partner is willing to spend money for its repair while the other refuses, then the person who spends money and repairs it should take all the water until he recovers half the expenses from his partner.

Imam Malik, may Allah have mercy on him, said that if all the effort and labor is from the owner of the garden, but the worker does some manual labor, then he will be considered a laborer in exchange for a share of the fruits, so this is not correct, because the wage is unknown.

Imam Malik, may Allah have mercy on him, said that whoever enters into a qirad (profit-sharing partnership) or musaqat (sharecropping of trees), it is not permissible for him to exclude any wealth or tree from it, stipulating that he will take their fruit, because there is deception in this.

Imam Malik, may Allah have mercy on him, said that the owner of the garden can stipulate the following conditions upon the worker: to maintain the boundaries of the garden, to keep the water springs clean, to keep the bases of the trees clean, to keep the trees clean, to prune them, to cut from the date palm trees, and other similar tasks. He has the option to fix half of the fruit for the worker or more or less, provided that both are agreeable. It is not permissible for the owner of the land to stipulate upon the worker the making of anything new, such as digging a well or a water reservoir, or running a spring, or planting other trees whose roots the worker brings, or making a pond, with the intention that the income of the garden may increase.

Imam Malik, may Allah have mercy on him, said: Its example is like that of a garden owner who says to someone: Build a house for me, or dig a well, or repair a spring, or do something else, and in exchange I will give you half of the fruits of my garden, even though those fruits have not yet ripened, nor is their quality known. This is not permissible because it is a sale of fruits before their quality is known, and the Messenger of Allah, peace and blessings be upon him, forbade this. Imam Malik, may Allah have mercy on him, said: If the fruits have appeared well and their quality is assured, then if someone does any of these works in exchange for those fruits, there is no harm in it.

Imam Malik, may Allah have mercy on him, said that in our view, musaqat is permissible with all kinds of fruit-bearing trees, such as grapes, dates, olives, pomegranates, apricots, etc., on the condition that the owner of the land takes half of the fruit or less or more, and the rest goes to the worker.

Imam Malik, may Allah have mercy on him, said that if the owner of a field, being unable to tend to it himself, enters into a musaqat agreement with someone, it is permissible, provided that the crop has already sprouted and emerged.

Imam Malik, may Allah have mercy on him, said that for those trees in which musaqat is permissible, if fruits have already appeared on them in such a way that their improvement is certain, and their sale has become permissible, then musaqat is no longer permissible for them; however, it is permissible for the following year. But if the improvement of those fruits is not certain, and they are not yet fit for sale, then musaqat is permissible for them.

Imam Malik, may Allah have mercy on him, said that it is not permissible to give barren land as musaqat (sharecropping), but it is permissible to give it on rent. And if a person gives his barren land to someone so that he may cultivate it, and fixes a third or a fourth of the produce as rent for the land, then this is not permissible, because there is deception in it; it is not known whether the crop will grow or not, whether the yield will be less or more. Rather, its example is like a person hiring someone as a servant to accompany him on a journey, then saying, "Take a tenth of whatever profit I earn on this journey." This is not permissible.

Imam Malik, may Allah have mercy on him, said that musaqat is permissible with date-palm trees and not permissible with barren land, because the owner of barren land can rent out his land, while the owner of date-palms cannot sell his fruits until it is certain that they have improved.

Imam Malik, may Allah have mercy on him, said that in musaqat, the owner of the land is the worker; he cannot take more than what has been agreed upon. Gold or silver or grain or anything else, in this way the worker cannot take more than the owner.

Imam Malik, may Allah have mercy on him, said that the same ruling applies to mudarabah; if in mudarabah or musaqat more is taken than the stipulated amount, then it will be considered as hiring (ijarah), and such a hiring (ijarah) is not valid in which there is deception.

Imam Malik, may Allah have mercy on him, said: If someone makes a musaqat contract for land in which there are trees—either grapevines or date palms—and there is also some empty land, then if the empty land is one-third or less, the musaqat is valid. But if the empty land is more and the trees are in one-third or less, then it is permissible to rent out such land, but musaqat is not valid. This is because it is the custom of people that they make musaqat contracts for land, and a small portion of the land remains empty, or they rent it out and a small portion of the land contains trees. Or, for example, a mushaf or a sword that has silver on it is sold in exchange for silver, or a necklace or ring that contains gold is sold in exchange for gold. And people have always conducted such transactions. No specific limit has been set that if the amount of gold or silver is up to a certain extent, it is lawful, and if it is more, it is unlawful. However, according to us, in accordance with the practice of the people, the ruling is that when the gold or silver in a mushaf, sword, or ring is equal to one-third of the price or less, then its sale in exchange for silver or gold is valid; otherwise, it is not valid.

Malik said: Regarding a man who enters into a musaqat contract with another man for land in which there are date palms, grapevines, or similar types of perennial plants, and there is also uncultivated land (al-bayad) within it, Malik said: If the uncultivated land is subordinate to the main crop, and the main crop constitutes the greater or the majority part, then there is no harm in making a musaqat contract for it. That is, if the date palms constitute two-thirds or more, and the uncultivated land is one-third or less, then the uncultivated land in this case is considered subordinate to the main crop. But if the uncultivated land contains some date palms or grapevines or similar types of perennial plants, and the main crop is one-third or less, and the uncultivated land is two-thirds or more, then in this case, leasing (kirā’) is permissible, but musaqat is forbidden. This is because it is customary among people to make musaqat contracts for the main crop, even if there is some uncultivated land included, and to lease land even if there is a small amount of the main crop in it. Or, for example, to sell a mushaf or a sword that has silver ornamentation for silver, or a necklace or a ring that contains gems and gold for dinars. Such sales have always been permissible, and people have continued to buy and sell them, and nothing has been reported that is specifically described and restricted in this matter, such that if it reaches a certain amount it becomes forbidden, and if it is less than that it is permissible. The practice among us, which people have acted upon and permitted among themselves, is that if the silver or gold is subordinate to the item it is in, its sale is permissible. That is, if the blade, the mushaf, or the gems constitute two-thirds or more of the value, and the ornamentation is one-third or less, then its sale is permissible.

Imam Malik, may Allah have mercy on him, said that if the worker stipulates with the owner of the land that the slaves who were previously appointed for work should also remain appointed with me, then there is nothing objectionable in this, because there is no benefit in it for the worker; the only advantage is that by having them, the worker will have to do less labor, and if they were not there, he would have to do more labor. Its example is like one musaqat (sharecropping) being with those trees which are irrigated by springs, and another musaqat being with those trees where water has to be brought on a camel; both cannot be equal, because in one there is more labor and in the other less.

Imam Malik, may Allah have mercy on him, said that it is not permissible for the official to take any other work from those slaves, nor to make any condition with the owner regarding it.

Imam Malik, may Allah have mercy on him, said that it is not permissible for the owner of the land to set a condition to remove any of the slaves who were already appointed in the garden, but if he wishes to remove any slave, he should do so before the musaqat (sharecropping) contract. Similarly, if he wishes to include someone as a partner, he should do so before the musaqat contract, and then proceed with the musaqat.

Imam Malik, may Allah have mercy on him, said that if any of the slaves of the garden dies or disappears, then the owner of the garden will have to give another slave in his place.

Malik said: Whoever among the slaves dies, or is absent, or becomes ill, it is upon the owner of the wealth to replace him.

Imam Malik, may Allah have mercy on him, said that musaqat (sharecropping of trees) is permissible for two, three, four years, or less or more, in date-palm trees and what is similar to them.