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 the division!"
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
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 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 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 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."
