Muzara’ah or Metayage is a bargain in which a person tills the land (belonging to another) against a fixed share. It is a contract that requires a Declaration by the owner of the land, and that may made by any words conveying such meanings, as by saying; “I have entered into a Muzara’ah (Metayage) with you”, or “I have entrusted to you the land for so much time on the condition that you would till it on such terms”, or the like, and Acceptance by the farmer conveying its sense like other contracts. Apparently the Acceptance may be expressed in deed, while the Declaration is expressed in words, so that the farmer accepts the land for this purpose. It is not a condition in this contract to express it in Arabic language, so it may be expressed in any language. It is not far from to apply Mu’atat in it after specifying what is required to be specified in it.
Problem # 1 Besides the conditions required in the two parties to a contract, namely, majority, sanity, intention, free will, and non-interdiction due to insolvency, when its occupation is financial and not otherwise, as in case of a farmer who has to put in labor only, in a Muzara’ah the following conditions are also required:
First. The crop is to be jointly owned by both the parties. So if the whole produce is to belong to one of them, .or some special one produced earlier or produced from a special plot to belong to one and that produced in the other to belong to the other, it shall not be valid.
Second. Fixation of the farmer’s share, half, third or fourth (of the produce), or the like.
Third. Fixation of the time in specified number of months or years If it is confined to mentioning only the produce in a single year, then there are two opinions regarding its sufficiency for the condition of time, the preferable one being in favour of the former.
In case however the beginning of cultivation is specified, and when the time is mentioned with the period, it is indispensable that it must be a period that is usually required for the ripening of the crop, and it is not sufficient to mention a period that is shorter than required for the ripening of the crop.
Fourth. The land must be ärable (or capable of producing the crop), even if by treatment, repair, filling the pits, digging canals, or the like..
If it is barren and not suitable for farming, or there is no water for it, and the rain water is not sufficient for it, and it is not possible to obtain water for it, as by digging a canal, or a well or purchase (water) it shall not be valid.
Fifth. Fixation of the crop, whether it is wheat, barley, etc. when there are different purposes in them. It is sufficient if there is usual practice for implication. If he generalizes as usual practice, it shall be valid, in which case the farmer shall have the option to choose whichever crop he likes.
Sixth. Fixation of the actual land. So if it is specified as a plot out of these plots, or a farm out of these farms, it shall be void. Of course, if he specifies a particular piece of land, the parts of which do not differ, and says: “I have entered into Muzãraah with you for a Jarib (44 yards) of this piece of land entirely as prescribed,” then apparently it shall be valid, and the choice for selecting the Jarib shall lie with the landlord.
Seventh. Fixation of the liability for the seed and other expenses, as to which of the two parties shall be responsible for them, if it is not to be determined by usual practice.
Problem # 2 In a Muza’arah it is not a condition that the land is to be owned by the farmer, and it is sufficient for him to own its utilization, or utilization by lease, or the like, provided, that there is no condition of its utilization by him personally, or he has taken it from the land through a Muzära’ah, or the land is a Kharãji land and he has taken it from the ruler or some one else without the condition mentioned before.
If he has no title to it, or no control over it at all, as in case of wastelands, Muza’arah in them shall not be valid, even if it is possible for him to share with another in its cultivation and produce by sharing in its seed, but it shall not be a Muzaraah.
Problem # 3 If the owner of the land or the farm has given a general permission to the effect that whoever tills it shall be entitled to, suppose, half of the produce and a person tills it, its owner shall be entitled to his share in it.
Problem # 4 If both of them stipulate that the produce would be divided between them after taking out the land tax, taking out the cost of the seed for the supplier of the seed, or what had been spent on the development of the land for one who has spent it, then if they are satisfied with something that is left from the produce after all this, it is to be divided between them, it shall be valid; otherwise it shall be void.
Problem # 5 If the fixed time has expired, and the crop has not become ripe, the farmer shall not be entitled to retain it, even against payment of compensation. Rather the landlord shall be entitled to remove it without payment of indemnity, and he shall be entitled to retain it gratis or against some payment if the farmer agrees.
Problem # 6 If the farmer abandons the farm until the expiry of the prescribed time, shall he be liable for proper compensation, or what is equal to the share of the landlord as per estimate, or shall he not be liable for anything at all? There are several alternatives, the most reasonable being in favour of his liability for proper compensation in case the land was in his possession and he has abandoned the farm neglecting it. In case otherwise, he shall not be held liable though it is more cautious to reach a compromise and mutual agreement. This is the case when he has abandoned the farm without any usual excuse as extraordinary snow or the place turning into an army camp or abode of beasts, or the like; otherwise, the Muzära’ah shall be cancelled.
Problem # 7 If a farmer starts tilling a land, and later it transpires that it has no water at present, but it can be obtained by digging a well or the like, it shall be valid, but the agent shall have the option to revoke the contract. Similar shall be the rule, in case it transpires that the land is not suitable for agriculture except by a complete treatment, as when it is submerged with water, but it is possible to stop it. Of course, if it transpires that neither is there presently any water in it, nor is it possible to procure it, or it has some obstacle that can neither be removed, nor is it hoped to disappear, it shall be cancelled.
Problem # 8 If the landlord has specified a particular type of crop like wheat, but the farmer cultivates some other seed, then if the specification were in the form of a condition made in the contract of Muzara’ah, the landlord shall have the option either to revoke the contract or endorse it. If he endorses it, he shall receive his share. If, however, he rescinds the contract, the crop shall belong to the farmer, and he shall be bound to pay the land rent to the landlord.
If it were a mere restriction, the landlord shall be entitled to the land rent, and an indemnity in case of damage to the land.
Problem # 9 Apparently it is valid to stipulate in the contract of Muzãra’ah that the land and labor shall belong to one party, and the seed and the ploughing implements (like the ploughing animal) to the other, or one of these to be contributed by one and the rest by the other. Rather, it shall be valid if both of them share in all the materials. It is, however, indispensable to prescribe all this at the time of concluding the contract, except when there is the usual practice, it can be dispensed with.
It is not necessary for a Muzara’ah to be concluded by two persons only. It is allowed for the land to belong to one person, the seed to another, the labor to a third one and the ploughing implements to a fourth person, though it is more cautious to avoid such situation, and not to exceed the number from two. Rather this caution must not be given up, if possible.
Problem # 10 A farmer is allowed to make another person a partner in his Muzära’ah, and specify a share for him out of his own share, as he is allowed to transfer his share to another person, and stipulate that he would perform the job of farming. However, he shall be responsible to the landlord, and shall be bound to perform the job even if through some agent. As regard the second contract of Muzara’ah, as the farmer is responsible to the landlord, it shall not be deemed a Muzãra’ah, and so it shall not be a contract as such. The permission of the landlord is neither a condition for the validity of making a (a third person as) partner in Muzara’ah nor for transferring his share to another person. Of course, according to the more cautious opinion, it is not allowed to give the land in the possession of another person without the permission of the landlord, as when the landlord stipulates that the farmer has to perform the job personally and not make another person as his partner and that he must not transfer his share to another, then it has to be acted upon.
Problem # 11 A contract of Muzäraah is binding for both the parties. So it is not terminated by revocation by either of them, unless he has such option. Like all other contract, this contract is also cancelled by Iqalah by both of them, as it is cancelled and is terminated automatically if the land ceases to be suitable for farming due to some reason and it is not possible to solve it.
Problem # 12 A Muza’arah is not terminated on the death of either of the two parties. If the landlord dies, his heir shall stand in his place. Similar shall be the case if the agent dies. If, however, the heirs complete the job, they shall be entitled to the share of the propositus, or they shall have to hire some one for the completion of the job from the property of the propositus even if it is out of the said share. If there is some residue, it shall belong to them. Of course, if it has been stipulated that the agent shall perform the job personally, the contract shall terminate on his death
Problem # 13 If, after the farmer starts tilling the land, it transpires that the contract was void, then if the landlord was to contribute seed, the crop shall belong to him, and he shall be bound to pay the wages for the agent and the rent for the (ploughing) implements, if they belonged to the agent, except when the invalidity of the contract was due to the ascription of the entire produce to the landlord, in which case, according to the stronger opinion, he shall not be bound to pay the wages for the labor and rent for the implements. If the seed belonged to the agent, the crop shall belong to him and he shall be bound to pay the land rent. The same rule shall apply to the implements if they belonged to the landlord, unless the invalidity of the contract was due to the ascription of the whole produce to the farmer, in which case he shall not be bound to pay the rent for the land and the implements, and the farmer shall not be entitled to retain the farm until the ripening of the crop, even by payment of its compensation, and the landlord shall be entitled to order for its removal.
Problem # 14 The manner in which the agent shall share in the produce with the landlord shall depend on the contract actually entered into by them. Sometimes both of them become partners in the crop from the time of its appearance and manifestation. So its (dry) grass, fresh mowed grass (of barley), hay and grain all belong to them jointly, or in other case, they share in the grain only either from the time it forms into grain or afterwards until the time of its harvest, so that the (dry) grass and the fresh mowed grass and hay belong to the owner of the seed. It is also possible for the seed to belong to one of them, and the (dry) grass, the fresh mowed grass (of barley) and hay may belong to the other with their partnership in the grain. This is in case of such specification. In case otherwise, apparently what is required by the general terms of the contract is the first alternative, namely, the crop shall belong to both of them jointly right from the time of its appearance and manifestation.
There are the following different positions:
First, they also share the fresh mowed grass (or barley) and hay.
Second, Zakãt shall be charged from both of them if the share of each of them reaches the taxable limit (Nisäb). It shall be charged from the one whose share has reached the said limit, if the share of one of them has reached such limit. It shall not be charged at all, if the share of neither of them has reached such limit.
Third, if the contract is terminated by one of them due to his right of option, or by both of them by mutual Iqalah during its currency, the crop shall belong to both of them, and neither the landlord shall be entitled to receive the land rent from the agent, nor the agent to receive his wages from the landlord in relation to his past labor.
As regards the future until the ripening and harvest (of the crop), if mutual agreement has been reached between them as to the retention of the crop with or without compensation or on cutting it while still unripe, there shall be no objection; otherwise, each of them shall be the master of his respective share. So the landlord shall be entitled to demand division (of the crop) and compel the farmer to cut his share, in the same way as the farmer shall be entitled to demand his share so that he may cut his share (of the crop).
Problem # 15 The tax on land and the rent on the land on lease shall be paid by the person giving the land on Muzãraah and not on the farmer, except when it has been stipulated wholly or partly.
However, as regards other expenses like digging canals, or wells, repair of the canals, providing means of irrigation, installing water wheels, Persian wheels, etc. it is indispensable to specify as to which of the two parties shall be responsible for them, except when there is usual practice in which case its can be dispensed with.
Problem # 16 It is allowed for the farmer and the landlord at the time of ripening of the crop to accept the share of the other partner according to the estimate in the prescribed amount from his produce with mutual consent.
According to the stronger opinion, it becomes binding for both the parties after acceptance, even if afterwards it turns out to be more or less. So whoever has accepted that share shall be bound by that share, even if later it transpires that the share of his partner is less than that, in the same way as his partner is bound to accept it, even if later it transpires that his share was more than that, and he shall not be entitled to demand more.
Problem # 17 If there remain roots of the crop in the land after collecting the produce and expiry of the prescribed time, and they grow the next year, then if there was an agreement between both of them to share the crop and its roots, the new crop shall belong to both of them according to the previous crop. If the agreement was confined to the division of only the crop of that year, then the crop of the next year shall go to the owner of the seed. If he abandons it, then it shall belong to one who is first to take it up.
Problem # 18 A contract of Muzara’ah can be concluded in respect of a barren land that cannot be tilled except after its repair and developed on the condition that the agent shall develop and repair it and till it , for example, for one year or two years, for himself, after which the produce shall be divided between both of them as a joint property as per prescribed shares until a prescribed period of time.
Musaqat is a transaction made in respect of fixed (or immovable) roots (or trees) with a person on the condition that he shall water them for a specified period of time for a (prescribed) share in their fruits. It is a contract requiring Declaration, as the owner of roots (or trees) saying: “I have entered into a contract of Musaqat with you”, or “I have made a mutual transaction with you”, or “I have entrusted to you ...“, or the like, and Acceptance as saying (in reply): “I have accepted”, or the like. It is sufficient in expressing both (Declaration and Acceptance) by any words conveying the said sense in whatever language they may be. Apparently an Acceptance in deed after Declaration expressed in words is sufficient, as Mu’ãtat also takes place in it, as mentioned under the Section on Muzära’ah.
Besides (both the above conditions of Declaration and Acceptance), it requires other conditions of the two parties entering into a contract, namely, majority, sanity, intention, free will, and non-interdiction on account of idiocy in both the parties, and on account of insolvency, except in the agent. Moreover, the person entering into the contract must own either the roots (or trees) themselves or their usufruct, or must be qualified to make changes in them in the capacity of a Wali etc. The roots (or trees) must be specified in their possession and definite in their knowledge. They must be planted, and fixed. So is a Musaqat in respect of seedlings before they are planted or roots (or trees) that are not fixed like melons, cucumber, or the like.
The duration for which the Musaqat is concluded must be specified and definite in way that there may not be any confusion about its being more or less, as in years and months. Apparently it is sufficient to make the duration as ripening of the fruits in a single year when the time of the start of watering has been specified.
The separate share of each of them must be fixed and specified in the joint property (of fruits) as one-half, one-third, or the like. It is not valid to specify a fixed amount of the share of one of them and the rest for the other party, or prescribe for one of them specified trees, and the rest for the other party.
Of course, it is not far from being permissible to stipulate the reservation of some particularly specified trees for one of them, and the rest to be shared by both, or stipulate for one of them a fixed amount and the rest to be shared by both, when it is known that the fruits are more than that amount and that there still remain some of the fruits (to shared by both).
Problem # 1 There is no objection in entering into a contract of Musaqat before the appearance of the fruits. As regards the validity of the conclusion of Musaqat after the appearance of the fruits but before their ripening, there are two opinions, the stronger being in favour of its validity when the fruits require watering or some other labor due to which there may be an increase in the fruits even if qualitatively. There is hesitation in the validity of other cases, in the case of Musaqat after ripening of the fruits when they need no labor except protection and plucking.
Problem # 2 No Musaqat is valid in respect of non-bearing fruit trees, as a willow (tree), or the like. Of course, it is not far from being permissible in case of the trees that are useful for their leaves or flowers, as the male mulberry tree, or henna, or some varieties of willow (tree) having flowers, or the like.
Problem # 3 Conclusion of Musaqat in respect of planted saplings before they bear fruits is valid on the condition that its duration is made for the time they start bearing fruits as five, or six or more years.
Problem # 4 If the trees do not require watering as they can do only with the rain-water, or sucking the moisture in the earth, but they need some other labor, then, according to the opinion closer to the traditional authority, it would be valid to enter into Musaqat in respect of them when those labor cause increase in the fruits, regardless whether the increase is in quantity or quality. In other cases, there is hesitation in the validity of Musaqat. So caution must not be given up.
Problem # 5 If a garden has different varieties of trees and palm-trees, it is allowed to specify for each of them a share different from that of the other variety, as specifying, for example, one-half in case of fruits of palm-trees, one-third in those of vines, and one-fourth in case of those of pomegranate trees, but when both of them know them amount of yield of each of the varieties, as the knowledge that avoids loss is a condition in a transaction made on the total with a uniform share.
Problem # 6 It is known that there are several types of labor that are needed by the gardens, trees and palm-trees for their repair, development and increasing their fruits and their protection. Some of them are such as are repeated every year, as developing the land, dredging of the canals and repairing the waterways, removing the harmful weeds, clipping the branches of trees, vines, grafting, placing the trees in the sun, changing the position of the trees, and protection of the fruits until the time of their division, etc.
There are some types of labor that are not mostly repeated, as digging wells and canals, building walls, arranging water wheels and Persian wheels, and the like.
In case a Musaqat has been entered into in general terms without specifying conditions, the second type of jobs shall be the responsibility of the landlord. As regards the first type of labor, it shall follow the prevalent custom and practice, so that whichever of them is the responsibility of the landlord or the agent, shall be followed accordingly, and there shall be no need to specify it. Perhaps they differ with the difference of places. If they are not customary, it is indispensable to specify as to whose responsibility they are
Problem # 7 A contract of Musaqat is binding on both the parties, and is not terminated except through an Iqalah made by both the parties to the contract, or revocation by option. It is not cancelled on the death of either of the parties, but their heirs stand in their place. If, however, there is a condition of personal performance by the agent, it shall be cancelled on his death.
Problem # 8 It is not a condition that the agent must perform the job personally. So he is allowed to hire some one for the performance of some of the jobs, or their completion, and he shall have to pay wages for them. It is also allowed for someone to do the jobs gratis, and the agent shall still be entitled to his prescribed share. If he does not intend to do it gratis, then there is hesitation in it being sufficient for its validity. It shall become all the more hesitant, if he intends to perform it gratis, for the landlord. The same shall be the case if he is not obliged but to water the trees, and there is no need for it due to rains, and they do not need it at all. If, however, the agent is bound to perform some jobs other than watering, and after there is no need of watering due to rain, but there still remain the other jobs, then if they are of the nature that cause increase in the fruits, then apparently the agent shall be entitled to his share; otherwise, there is hesitation in his entitlement.
Problem # 9 It is allowed to stipulate something other than his share as cash money, etc. for the agent. The same is case of share in the trees regardless whether it is joint or separate.
Problem # 10 In every case when the contract of Musaqat is terminated, the fruits shall belong to the landlord, and the agent shall be entitled to a proper wages for his labor, despite his knowledge of its invalidity legally. Of course, if the contract has vitiated due to the stipulation of reserving the entire fruit for the landlord, he shall not be entitled to any wages, despite his ignorance about the invalidity of the contract.
Problem # 11The agent becomes the owner of the fruits from the time of their appearance. So if he dies before the division (of the shares), and the contract of Musaqat is terminated due to the condition of his personal performance of the job, his share shall be transferred to his heir, who shall be bound to pay his Zakãt if the amount of share has reached the taxable limit (Nisãb).
Problem # 12 Mughasarah is invalid. It means lending land to another so that he must plant trees in it on the condition that whatever is planted shall belong to both the parties, regardless whether it has been stipulated that the land must also belong to the agent or not, and whether the tress must be provided by the landlord or the agent. In such case, the plants shall belong to their owner. If they belong to the landlord, he shall be bound to pay the wages for labor of the planter. If they belong to the planter, he shall be bound to pay the land rent. If both the parties mutually agree on the retention of the plants against payment of compensation or without it, well and good; otherwise, the landlord shall be entitled to order to uproot them, and he shall be bound to pay indemnity if the trees are damaged by uprooting. Likewise, the planter shall be entitled to uproot them, and he shall be bound to fill the pits or the like caused due to uprooting the trees, and the landlord shall not be entitled to compel the planter to retain the trees even without payment of compensation.
Problem # 13After the cancellation of the Mugharasah, it is possible to reach its result by entering it into some other lawful title in which both the parties may share the trees, either by way of purchasing them in partnership so that the landlord may authorize the planter in a way that whatever saplings he purchases shall be purchased on behalf of both of them, then the planter shall give himself on hire to plant the share of the landlord water them, and serve them during a specified period of time for half of the usufruct of his land until that time or half of the land itself, or by making another owner of, suppose, half of the trees if they belong to one of them, and, in case the saplings belong to the landlord, let the consideration be plantation and labor until a specified time and stipulate for himself to let the planter’s share in the land continue gratis until that time.
If they belong to the planter, let him make the consideration half of the land itself or half of its usufruct until the specified time and stipulate for himself plantation of the landlord’s share and service until that time.
Problem # 14 The tax charged by the government on the palm-trees and trees on the Kharãji land shall be payable by the landlord except when stipulated that it shall be paid by the agent or both of them.
Problem # 15 An agent in a contract of Musaqat is not allowed to enter into a contract of Musaqat with another except with the permission of the landlord, but in it his permission reverts to his authorization in entering into a contract of Musaqat on behalf of the landlord with a third person after the termination of the first contract. So the agent of the first contract shall not be entitled to anything.
Of course, an agent is apparently allowed to make another person a partner in his job.
A Debt is an absolute and definite asset owed to another person due to any of the causes. The person who owes it is called a debtor (Madin or Madyun), while the other a creditor (Dã’in or Gharim). Its causes are either borrowing or other voluntary affair, as terming it as a commodity sold (Mabi) in a Silm sale, or a consideration in lending, or wages or rent in a Lease, or a Dower in a Marriage, or Ransom in a Khul’ etc. Or it may be coercive, as in cases of Guarantees, Maintenance of a permanent wife, or the like. There are some common rules and some special rules of Debt.
Chapter One - Rules Concerning Debt
Problem # 1 A Debt is either Prompt, in which case the Creditor is entitled to demand its repayment, and the Debtor is bound to repay it if it is possible and easy for him whenever demanded (by the Creditor).
Or it is Deferred, in which case the Creditor is not entitled to demand its repayment, and the Debtor is not bound to repay it except after the expiry of the period of maturity and arrival of the prescribed time.
The period of maturity is sometimes specified by the Debtor and Creditor, as in case of a Silm sale or Borrowing, while at some other time, it is specified by the judge, as in case of Nujum (p1. of Najm, or payment of a debt in instalments prescribed by a judge) or the instalments prescribed in a Diyat (or Indemnity for bodily injury prescribed by a judge).
Problem # 2. If a debt is Prompt or Deferred, and its term has matured, so as a debtor in easy circumstances is bound to repay it on demand by the creditor, in the same way a creditor is bound to receive and get its delivery when the debtor intends to repay it and be released from his obligation. As regards a Deferred debt, there is no difficulty in it before the maturity of its term, as, in its case, the creditor is not entitled to demand its repayment. The problem lies in whether the creditor is bound to accept it or not when the debtor wants to repay it willingly? There are two alternatives, rather opinions, the stronger being in favour of the latter, except when it is known that the term for repayment, has been specified only as a leniency towards the debtor without its being a right for the creditor.