Al-Muwatta' of Imam Malik
33.0 Sharecropping (Musaqa)
by Imam Malik ibn Anas
Translated by: Ustadha Aisha Bewley
Translated by: Ustadha Aisha Bewley
1 Yahya related to me from Malik from Ibn Shihab from Sa'id ibn al-Musayyab that the Messenger of Allah, may Allah bless him and grant him peace, said to the Jews of Khaybar on the day that Khaybar was conquered, "I confirm you in it as long as Allah, the Mighty, the Majestic, establishes you in it provided that the fruits are divided between you and us."
Sa'id continued, "The Messenger of Allah, may Allah bless him and grant him peace, used to send 'Abdullah ibn Rawaha to assess the division of the fruit crop between him and them, and he would say, 'If you wish, you can buy it back, and if you wish, it is mine.' They would take it."
2 Malik related to me from Ibn Shihab from Sulayman ibn Yasar that the Messenger of Allah, may Allah bless him and grant him peace, used to send 'Abdullah ibn Rawaha to Khaybar to assess the division of the fruit crop between him and the Jews of Khaybar.
The Jews collected pieces of their jewelry for 'Abdullah and told him, "This is yours. Treat us lightly and do not be too exacting in the division!"
'Abdullah ibn Rawaha said, "O tribe of Jews! By Allah, you are the most hateful to me of Allah's creation, but it does not prompt me to deal unjustly with you. What you have offered me as a bribe is forbidden. We will not touch it." They said, "This is what supports the heavens and the earth."
Malik said, "If a sharecropper waters the palms and between them there is some uncultivated land, whatever he cultivates in the uncultivated land is his."
Malik said, "If the owner of the land makes a condition that he will cultivate the uncultivated land for himself, that is not good because the sharecropper does the watering for the owner of the land and so he increases the property of the landowner (without any return for himself)."
Malik said, "If the owner stipulates that the fruit crop is to be shared between them, there is no harm in that if all the maintenance of the property - seeding, watering and care etc. - are the concern of the sharecropper.
If the sharecropper stipulates that the seeds are the responsibility of the owner of the property, that is not permitted because he has stipulated an outlay against the owner of the property. Sharecropping is contracted on the basis that all the care and expense is outlayed by the sharecropper, and the owner of the property is not obliged to do anything. This is the accepted method of sharecropping."
Malik spoke about a spring which was shared between two men, and then the water dried up and one of them wanted to work on the spring and the other said, "I do not have the means to work on it." He said, "Tell the one who wants to work on the spring, 'Work and expend. All the water will be yours. You will have its water until your companion brings you half of what you have spent. If he brings you half of what you have spent, he can take his share of the water.' The first one is given all the water because he has spent out on it, and if he does not achieve anything by his work, the other has not incurred any expense."
Malik said, "It is not good for a sharecropper to only expend his labour and to be hired for a share of the fruit while all the expense and work is incurred by the owner of the garden because the sharecropper does not know what the exact wage is going to be for his labour, whether it will be little or great."
Malik said, "No one who lends a qirad or grants a sharecropping contract should except some of the wealth or some of the trees from his agent because by that the agent becomes his hired man. He says, 'I will grant you a sharecrop provided that you work for me on such-and-such a palm - water and tend it. I will give you a qirad for so-much money provided that you work for me for ten dinars. They are not part of the qirad which I have given you.' That must not be done. It is not good. This is how things are done in our community."
Malik said, "The sunna of what is permitted to an owner of a garden in sharecropping is that he can stipulate to the sharecropper the maintenance of walls, cleaning the spring, sweeping the irrigation canals, pollinating the palms, pruning branches, harvesting the fruit and such things, provided that the sharecropper has a share of the fruit fixed by mutual agreement. However, the owner cannot stipulate the beginning of new work which the agent will start - digging a well, raising the source of a well, instigating new planting, or building a cistern whose cost is great. That is as if the owner of the garden were to say to a certain man, 'Build me a house here or dig me a well or make a spring full for me or do some work for me for half the fruit of this garden of mine' before the garden is sound and it is halal to sell it. This is the sale of fruit before its good condition is clear. The Messenger of Allah, may Allah bless him and grant him peace, forbade fruit to be sold before it was clear that it was in good condition."
Malik continued, "If the fruits are good and their good condition is clear and selling them is halal, and then the owner asks a man to do such a job for him, specifying the job, for half the fruit of his garden, for example, there is no harm in that. He has hired the man for something recognised and known. The man has seen it and it satisfied with it.
"As for sharecropping, if the garden has no fruit or little or bad fruit, he has only that. The labourer is only hired for a set amount, and hire is only permitted on these terms. Hire is a type of sale. One man buys another man's work from him. It is not good if uncertainty enters into it because the Messenger of Allah, may Allah bless him and grant him peace, forbade uncertain transactions."
Malik said, "The sunna in sharecropping with us is that it can be practised with any kind of fruit tree, palm, vine, olive tree, pomegranate, peach, and so on. It is permitted, and there is no harm in it, provided that the owner of the property has a share of the fruit: a half or a third or a quarter or whatever."
Malik said, "Sharecropping is also permitted in any crop which emerges from the earth if it is a crop which emerges from the earth if it is a crop which is picked and its owner cannot water, work on it and tend it.
"Sharecropping becomes reprehensible in anything in which sharecropping is normally permitted if the fruit is sound and its good condition is clear and it is halal to sell it. He must sharecrop in it the next year. If a man waters fruit whose condition is clear and it is halal to sell it, and he picks it for the owner for a share of the crop - it is not sharecropping. It is similar to him being paid in dirhams and dinars. Sharecropping is what is between pruning the palms and when the fruit becomes sound and its sale is halal."
Malik said, "If someone makes a sharecropping contract with fruit trees before the condition becomes clear and its sale is halal, it is sharecropping and is psharecropping contract with fruit trees before the condition of the fruit becomes clear and its sale is halal, it is sharecropping and is permitted."
Malik said, "Uncultivated land must not be involved in a sharecropping contract. That is because it is halal for the owner to rent it for dinars and dirhams or the equivalent for an accepted price."
Malik said, "As for a man who gives his uncultivated earth for a third or a fourth of what comes out of it, that is an uncertain transaction because crops may be scant one time and plentiful another time. It may perish completely and the owner of the land will have abandoned a set rent which would have been good for him to rent the land for. He takes an uncertain situation and does not know whether or not it will be satisfactory. This is disapproved. It is like a man having someone travel for him for a set amount and then saying, 'Shall I give you a tenth of the profit of the journey as your wage?' This is not halal and must not be done."
Malik summed up, "A man must not hire out himself or his land or his ship unless it is for set amount."
Malik said, "A distinction is made between sharecropping in palms and in cultivated land because the owner of the palms cannot sell the fruit until its good condition is clear. The owner of the land can rent it when it is uncultivated with nothing on it."
Malik said, "What is done in our community about palms is that they can also be sharecropped for three and four years, and less or more than that."
Malik said, "That is what I have heard. Any fruit trees like that are in the position of palms. Contracts for several years are permissible for the sharecropper as they are permissible in the palms."
Malik said about the owner, "He does not take anything additional from the sharecropper in the way of gold or silver or crops which increase. That is not good. The sharecropper also must not take from the owner of the garden anything additional which will increase him in gold, silver, crops or anything. Increase beyond what is stipulated in the contract is not good. It is also not good for the lender of a qirad to be in this position. If such an increase does enter sharecropping or qirad, it becomes by it hire. It is not good when hire is involved. Hire must never occur in a situation which has uncertainty in it."
Malik spoke about a man who gave land to another man in a sharecropping contract on some of which there were palms, vines, or other such fruit trees growing, and some of which was uncultivated. He said, "If the uncultivated land is secondary to the fruit trees, either in importance or in size of land, there is no harm in sharecropping. That is if the palms take up two-thirds of the land or more and the uncultivated land is a third or less. This is because when the land given over to fruit trees is secondary to the uncultivated land and the cultivated land in which the palms, vines, or the like is a third or less, and the uncultivated land is two-thirds or more, it is permitted to rent out that land and sharecropping in it is haram.
"One of the common practices of people is to enter into sharecropping contracts on property with fruit trees which has uncultivated land attached to it, and to rent land which has fruit trees on it, just as a Qur'an or a sword which has some silver embellishment on it is sold for silver, or a necklace or ring which have stones and gold in them are sold for dinars. These sales continue to be permitted. People buy and sell by them. No specific has been described or instituted about such things which, if exceeded, makes them haram, and, if fallen below makes them halal. What is done in our community about them is what people have always practised and permitted among themselves. That is, if the gold or silver is secondary to what it is incorporated in, it is permitted to sell it. For instance, if the value of the blade, the Qur'an, or the stones is two-thirds or more, and the value of the decoration is. For instance, if the value of the blade, the Qur'an, or the stones is two-thirds or more, and the value of the decoration is one-third or less."
33.2 The Condition about Slaves in Sharecropping
3 Yahya said that Malik said, "The best of what has been heard about a sharecropper stipulating on the owner of the property the inclusion of some slave workers is that there is no harm in it if they are workers that are attached to the property. They are like the property. There is no profit in them for the sharecropper except to lighten some of his burden. If they did not come with the property, his toil would be harder. It is like sharecropping land with a spring or a watering-trough. You will not find anyone who receives the same share for sharecropping two lands which are equal in property and yield when one property has a constant plentiful spring and the other has a watering-trough, because of the ease of working land with a spring and the hardship of working land with a watering-trough."
Malik added, "This is what is done in our community."
Malik said, "A sharecropper cannot employ workers from the property in other work, and he cannot make a stipulation with the contract holder. Nor is it permitted for the sharecropper to stipulate on the owner of the property inclusion of slaves for use in the garden who are not attached to it when he makes the sharecropping contract.
"Nor must the owner of the property stipulate to the sharecropper that the owner can take any particular slave attached to the property and remove him from the property. The sharecropping of property is based on the state which it is currently in.
"If the owner of the property wants to remove one of the slaves of the property, he removes him before the sharecropping, or if he wants to put someone into the property he does it before the sharecropping. Then he grants the sharecropping contract after that if wishes. If any of the slaves die or go off or become ill, the owner of the property must replace them."