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."
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