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 for Abdullah pieces of their women's jewellery
and said to him, "This is yours. Go light on us and don't be exact in
Abdullah ibn Rawaha said, "O tribe of jews! By Allah! You are among
the most hateful to me of Allah's creation, but it does not prompt me
to deal unjustly with you. What you have offered 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 share-cropper 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 owner of the land in property (without any return for
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 case, etc. - are the concern
of the sharecropper.
If the share-cropper 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. Share-cropping
is conducted on the basis that all the care and expense is outlayed
by the share-cropper, and the owner of the property is not obliged anything.
This is the accepted method of share-cropping."
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 don't 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 on it, and if he does not reach anything
by his work, the other has not incurred any expense."
Malik said, "It is not good for a share-cropper not to expend anything
but 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
share-cropper 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 share-cropping contract,
should exempt 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 share-crop provided that you work for me on such-and-such
a palm - water it and tend it. I will give you a qirad for such-and-such
money provided that you work for me with ten dinars. They are not part
of the qirad I have given you.' That must not be done and it is not
good. This is what is done in our community."
Malik said, "The sunna about what is permitted to an owner of a garden
in share-cropping is that he can stipulate to the share-cropper 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 share-cropper 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 said to a certain man,
'Build me a house here or dig me a well or make a spring flow for me
or do some work for me for half the fruit of this garden of mine,' before
the fruit of 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 its good condition became clear."
Malik said, "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 one of
those jobs 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 is satisfied with it.
"As for share-cropping, 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 share-cropping with us is that it can be
practised with any kind of fruit tree, palm, vine, olive tree, pomegranate,
peach, and soon. 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, "Share-cropping is also permitted in any 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.
"Share-cropping becomes reprehensible in anything in which share-cropping
is normally permitted if the fruit is sound and the good condition is
clear and it is halal to sell it. He must share-crop in it the next
year. If a man waters fruit whose good 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. Share-cropping is what is between pruning the palms and
when the fruit becomes sound and its sale is halal."
Malik said, "If some one makes a share-cropping contract for fruit
trees before the condition becomes clear and its sale is halal, it is
share-cropping and is permitted . "
Malik said, "Uncultivated land must not be involved in a share-cropping
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 for a 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 share-cropped for three and four years, and less or more
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 share-cropper in the way of gold or silver or crops which increases
him. That is not good. The share-cropper also must not take from the
owner of the garden anything additional which will increase him of 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 share-cropping
or quirad, it becomes by it hire. It is not good when hire enters it.
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 share-cropping
contract in which there were palms, vines, or the like of that of fruit
trees and there was also uncultivated land in it. 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 share-cropping. 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 that the fruit trees take up
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 the land and share-cropping
in it is haram."
"One of the practices of people is to give out sharecropping contracts
on property with fruit trees when there is uncultivated land in it,
and to rent land while there are fruit trees on it, just as a Qur'an
or sword which has some embellishment on it of silver 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. Nothing described or instituted has come on that which if exceeded,
makes it haram, and if fallen below makes it halal. What is done in
our community about that is what people practise and permit among themselves.
That is, if the gold or silver is secondary to what it is incorporated
in, it is permitted to sell it. That is, 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."