Nasai

Hadith Footnote:
The meanings of the terms mukhabarah, muhaqalah, and muzabanah have already been written in detail previously.

Hadith Commentary: Benefits and Issues: The purpose of renting out land is to give it to someone for cultivation in exchange for wages or labor. There can be four scenarios for giving land for cultivation:

➊ The landowner gives land to the tenant or cultivator on the condition that, in exchange for this land, he will take twenty maunds or one hundred maunds from the produce. This scenario is unanimously impermissible according to the jurists, because it is not known how much produce will be obtained, or whether any will be obtained at all, or if it will be struck by calamity. Thus, there is uncertainty (gharar) and deception in this.

➋ The landowner gives land to the cultivator on the condition that the produce from such-and-such acres will be his, and the rest will be the cultivator’s. In this way, he keeps the best part for himself. This is also unanimously prohibited, because there is also the risk of uncertainty (gharar) in this. It is not known which part of the land may be struck by calamity and yield no produce, or how much produce will be in each part.

➌ The landowner gives land to the tenant on lease (theka), where the lease is in the form of a fixed and determined amount of gold, silver, currency, or any other thing. In any case, it is stipulated that this lease will not be a fixed amount from the produce of the land. According to the four Imams and the majority of jurists, this scenario is permissible. However, according to Imam Rabi‘ah al-Ra’y, the lease is only permissible in exchange for gold or silver, and in no other case. According to Imam Malik, it is permissible in exchange for anything except grain and produce. According to Imam Shafi‘i, Imam Abu Hanifah, Imam Ahmad, the two companions (Abu Yusuf and Muhammad), and the majority, it is permissible in exchange for anything. Its amount or value will be determined. However, according to Hasan al-Basri and Imam Tawus, it is not permissible to give land on lease. Imam Ibn Hazm also holds this view, and he attributes this position to ‘Ata’, ‘Ikrimah, Mujahid, Sha‘bi, Ibn Sirin, Qasim ibn Muhammad, and Masruq rahimahumullah. But after these Tabi‘in, all subsequent Imams and jurists are agreed on the permissibility of leasing. Therefore, Imam Ibn Qudamah has declared it a consensus issue in his book al-Mughni. (al-Mughni, vol. 5, p. 429, published by Idarat al-Buhuth al-‘Ilmiyyah wa al-Ifta, Saudi Arabia)

➍ The landowner gives land to the farmer on a sharecropping basis (batai or hissa), which is called muzara‘ah, meaning that from the produce obtained, he will take half. There can also be increase or decrease in this, depending on the facilities provided by the landowner to the farmer. Regarding this, the Imams have the following opinions:

- Giving land for sharecropping (muzara‘ah) without restriction is permissible; this is the view of Imam Ahmad, Imam Abu Yusuf, and Imam Muhammad. Ibn Hazm also holds this view. The permissibility of this is established from many Companions and Tabi‘in.
- Giving land on sharecropping is not permissible in any case; this is the view of Imam Abu Hanifah and Zufar. ‘Ikrimah, Nakha‘i, and Mujahid also held this view, and Imam Abu Hanifah did not consider musaqat (irrigation partnership) permissible either.
- According to Imam Shafi‘i, muzara‘ah is permissible with certain conditions. The first condition is that it should be within the context of musaqat (gardening), i.e., originally the orchard is given on a share basis, and within it there is some land that is cultivated.
(4) Muzara‘ah and musaqat should be done by the same farmer.
(5) The agreement should be made simultaneously and jointly, not separately.
(6) It should not be possible to give the land inside the orchard to someone else.
(7) The seed for the land will be provided by the landowner, etc.

Muzara‘ah will be within the context of musaqat, and two-thirds of the orchard will be land, and the land for cultivation will be one-third or less. This is the view of Imam Malik.

The correct view is that both muzara‘ah and musaqat are permissible. The fatwa of the Hanafis is also according to the view of the two companions, and the Ummah has been practicing this from the time of the Messenger of Allah sallallahu alayhi wa sallam until today. And the ahadith in which muzara‘ah is prohibited refer to specific scenarios in which there is uncertainty (gharar), which we have described in the first and second scenarios of muzara‘ah. And on some occasions, the Prophet sallallahu alayhi wa sallam instructed large landowners who had surplus land to show sympathy, goodwill, and self-sacrifice to those who did not have land, by giving them surplus land for cultivation, and to take back their land when needed. Both these points—that specific forms of muzara‘ah are prohibited, and that sympathy and goodwill are required—will be established from the coming ahadith.

Hadith Commentary: Benefits and Issues:
Muawamah,
is derived from 'aam' or 'year',
the purpose of which is to sell a fruit-bearing tree or orchard for several years,
and the reason for its prohibition is the possibility of gharar (uncertainty),
because it is not known whether the tree will bear fruit the following year or not,
and if it does, whether it will remain or fall victim to some unforeseen calamity,
which may cause loss to the buyer and lead him to hesitate in paying the price,
resulting in dispute and quarrel between the parties.

Thaniya:
This refers to making an exception when selling a tree in the orchard,
if the seller sells his orchard,
or sells something else and makes an exception of an unspecified tree or item,
for example, he says that two trees or one tree will be mine,
or some item will be mine, then this is unanimously prohibited.
But if the number of trees is known or the quantity of the item is known, and then he makes an exception of a specific and determined sale or a specific quantity of the item, then it is unanimously permissible.
However, if the quantity of the goods is not known,
for example, there is a heap of wheat and it is not known how much wheat there is, and then he makes an exception of a specific quantity,
for example, he says, from this heap I will keep two sa’ (a measure),
then according to Imam Abu Hanifah,
Shafi’i, and the majority, it is not permissible.
But according to Imam Malik, it is permissible.
The correct view appears to be that if the exception is of a very small amount,
in which there is no risk of dispute or quarrel,
then it should be permissible,
just as it is permissible in the case when he says,
half of it will be mine or a quarter of it will be mine.

Hadith Commentary:
Vocabulary of the Hadith:
The original meaning of "hatta tashuqqa" and "hatta tashuq" is the change of color;
what is meant is not complete redness or yellowness.
The narrator, in order to clarify the matter, has expressed it as redness and yellowness.

Hadith Commentary:
Vocabulary of the Hadith:
Mukhābarah, according to some, is derived from the word Khaybar (cultivator).
According to others, it is derived from khabār (soft and fertile land).
Some say it is derived from khibrah, meaning "share," because when a goat is bought, slaughtered, and its portions are distributed, they say: takhbiruhu akhbarah.

Benefits and Issues:
Apart from mukhābarah, the remaining discussions of the hadith have already been covered.
According to Ibn A‘rābī, mukhābarah refers to muzāra‘ah (sharecropping),
because this transaction was first conducted by the Prophet (sallallahu alayhi wa sallam) with the people of Khaybar.
Therefore, it was named mukhābarah.
According to some, if the landowner provides the seeds, it is called muzāra‘ah, and if the cultivator or farmer provides the seeds, it is called mukhābarah.
However, the correct view is that both are the same,
i.e., giving land to someone for cultivation on a share or crop-sharing basis.
The details of its lawful and unlawful forms will be discussed in the next chapter.

Commentary:
Explanation:
➊:
For the explanation of Muhaqala and Muzabana, see Hadith number (1224).

➋:
For the explanation of Mukhabara, see:
Hadith number (1290).

➌:
For the explanation of ‘Araya, see:
Commentary on Hadith number (1300).

➍:
Bay‘ al-Sinin is also called Bay‘ al-Mu‘awama.
Its form is that a person sells his orchard for several years.
This sale is not permissible because it falls under the category of selling what does not exist.
There is deception in it.
It is possible that the tree may not bear fruit at all,
or it may bear fruit, but the amount of fruit may exceed the price that was paid.

Explanation:
1:
The explanation of "muhaqalah" and "muzabanah" has already been mentioned; see Hadith number (1224).

2:
The meaning of "mukhabarah" is "muzara'ah," that is, taking land on sharecropping for a third or a quarter of the produce. This transaction is not absolutely prohibited; rather, people used to specify the produce of a certain part of the land for the sharecropper and a certain part for the landowner. This practice has been prohibited, because sometimes the sharecropper's portion remains safe while the owner's portion is destroyed, and sometimes the opposite happens. In this way, the matter leads to mutual dispute and quarrel; therefore, such a practice has been prohibited.

3:
Its form is as follows: for example, someone says, "I sell my orchard, but I will not give some of its trees," and does not specify which trees—then this is not valid, because the excluded trees are unknown. But if he specifies them, then it is permissible, as permission for this is present in the hadith above.

Benefits and Issues:
Explanations (Muhaqalah): Its definition has been given in several ways.
(a) Selling a standing crop in exchange for a known and specified quantity of grain.
(b) The definition which Imam Shafi’i rahimahullah has transmitted from Jabir radi Allahu anhu:
Selling the grain while it is still in the ears—this is the most correct definition.
(Muzabanah): Selling dates on the trees or grapes on the vines for a specified quantity of the same kind of fruit—this is the most correct definition.
(Al-Sahihayn) (Mukhabarah): It is synonymous with muzara’ah (sharecropping).
In fact, musaqah, muzara’ah, and mukhabarah—all three have the same meaning.
(Bay’ al-Muthnayn/Mu’awamah): Selling the specified fruit of a garden or trees for several years.
In this case, no one can know
what the yield will be,
whether diseases will occur or not, etc.
(’Araya): Its explanation has been mentioned in detail previously.
(Hadith 3362) (Istithna’): While selling a garden along with its fruit, saying that “we will continue to eat from it as well,”
or “we are not selling three trees or five trees,”
but if those trees are not specified, then such an exclusion of an unspecified and unknown quantity or trees is impermissible.
If it is known and specified, then there is no harm.

Benefits and Issues:
➊
It is prohibited to sell in advance the fruits of a garden or specific trees for several years.
Because it is not known whether those trees will bear fruit or not, or whether the yield will be little or much.
However, the contract of salam (or salaf) is a different type of sale.
In this, the buyer pays the seller in advance, stipulating that at the time of harvest, a certain quantity of a certain fruit or commodity of a specified quality must be provided. This is permissible because it is not a transaction involving the produce of a specific field, tree, or garden.
Rather, it is a transaction for a commodity or fruit of a particular standard, which can be obtained from anywhere.

➋
As for the transactions that had already taken place at that time, and where the produce was damaged due to calamities, compensation was arranged for the loss, and for the future, the instruction was given to sell fruits and the like only after they become usable.

The explanation of muhaqalah, muzabanah, and mukhabarah has already been mentioned earlier. (See Hadith: 3910) In a sale, istithna (exception) means that the seller says: “I sell you the fruit of this orchard for such-and-such amount, except that the fruit of ten trees will be mine.” However, he does not specify which ten trees’ fruit will be his. In this case, the exception is unknown (majhool), which can lead to dispute and disagreement; therefore, this is prohibited. However, if those ten trees are specified, then this is a known (ma’loom) exception. There is no risk of dispute in this, so such an exception is permissible. Similarly, if the seller says that he will take such-and-such amount (man) of fruit from the orchard, or such-and-such number of oranges, then this too is a known exception and is permissible.

(1) Mu'awiyah bin Salam, Yahya bin Abi Kathir, and mention of Yazid bin Na'eem as an intermediary between them and Jabir radi Allahu anhu, and Hisham bin Abi Abdullah narrates with Abu Salamah as an intermediary. However, this difference is not harmful. In Sahih Muslim, this hadith is narrated through both of these routes.

(2) The meaning of "haql" in this sense is not well-known. Previously (in hadith: 3894, 3895), it has been mentioned that "haql" refers to giving land on sharecropping. However, if "haql" is taken in the meaning of "muhaqala," then this meaning can be established. Because "muhaqala" and "muzabana" are one and the same thing. The only difference is that "muhaqala" pertains to crops, and "muzabana" pertains to fruits. In any case, both are prohibited.

There are two forms of rent: a fixed amount, or a fixed share from the produce, for example: half, one-third, or one-fourth, etc. The first form is commonly known as "theka" (contract farming), and the second form is called "batai" (sharecropping). The meaning of prohibition has already been explained at the beginning.

(1) Mukhabarah refers to giving land on the basis of sharing the produce. The details of its prohibition have already been explained earlier.

(2) Muzabanah is the sale of fruit still on the tree in exchange for a specified amount of dried fruit, and Muhaqalah is the sale of a crop growing in the field in exchange for a specified amount of dried grain. (See the reason for the prohibition of these two in the benefit of Hadith: 3894.)

(3) The sale of unripe fruit is prohibited because many calamities may befall it before it ripens. Later, there is a possibility of dispute, and there is also a strong likelihood of loss to the buyer, while the seller has already taken his money. It is possible that the fruit may be ruined. From where and for what reason will the buyer pay the money?

(4) ‘Ariya (plural: ‘Ariyaa) is an exception to Muzabanah. ‘Ariyah refers to a tree which an orchard owner gives as a gift to a poor person, saying: “Use the fruit of this tree this year.” The tree itself remains the property of the original owner, while the poor person will have to come and go in the orchard for the care and supervision of the fruit, etc. It is possible that his coming and going may cause inconvenience to the orchard owner, or the poor person may not be able to wait until the fruit ripens. Therefore, the Shari‘ah, considering the compulsion of both parties, has permitted that they may sell the fruit present on the tree in exchange for a specified amount of dried fruit. The poor person will receive the dried fruit, and the tree along with its fruit will return to the orchard owner. This is also Muzabanah, but for the poor person, a special permission has been given for a small quantity (up to about twenty mann).

(1) However, the commentary of the Imam is questionable because this hadith is also present in Sahih al-Bukhari and Muslim. In these as well, ‘Ata’ narrates from Jabir radi Allahu anhu, which is a clear proof of his direct hearing from Sayyiduna Jabir radi Allahu anhu. See: (Sahih al-Bukhari, al-Harth wal-Muzara‘ah, Hadith: 2340; and Sahih Muslim, al-Buyu‘, Hadith: 1536, after Hadith: 1543)

(2) “Unknown exception” (majhool istithna), for example: if a person, at the time of selling the fruit of an orchard, says that he will take the fruit of the trees, but does not specify which trees. This type of unknown exception later becomes a cause of dispute, hence it is prohibited. Furthermore, there is also the risk of injustice to the buyer, as the owner of the orchard may reserve the best trees for himself. However, if the trees are specified from the outset, then there is no harm, because the profit is clear.

The explanation of "mukhadarah" and "mukhabarah" as given is not correct; rather, "mukhadarah" refers to the transaction of selling unripe crops, and "mukhabarah" means giving land on sharecropping.

Footnote:
By "mu'awamah" is meant a transaction for several years. (For details, see Hadith: 4630) For further discussion, refer to Hadith: 3910, 4542.

For details, see Hadith number 3910.

Urdu marginal note:
Mukhābarah: Giving land on the basis of sharecropping;
Muzābanah: The sale of fresh fruit still on the tree in exchange for dried fruit;
Muhāqalah: The sale and purchase of a crop with grain still in the field in exchange for dry grain;
For details, see Hadith number: 3910, etc.

Benefit:
It is established from this hadith that land should not be given on lease or sharecropping. However, from other narrations, its permissibility is proven; when there is no deception, it is permissible, and when there is deception, it is not permissible.