1 Malik related to me from Zayd ibn Aslam that his father said, "'Abdullah and 'Ubaydullah, the sons of 'Umar ibn al-Khattab, left with the army for Iraq. On the way home, they passed by Abu Musa al-Ash'ari, the Amir of Basra. He greeted them and made them welcome and told them that if there was anything he could do to help them, he would do it. Then he said, 'There is some of the property of Allah which I want to send to the Amir al-Muminin, so I will lend it to you and you can buy wares from Iraq and sell them in Madina. Then give the principal to the Amir al-Muminin, and you keep the profit.' They said that they would like to do that, and so he gave them the money and wrote to 'Umar ibn al-Khattab to take the money from them. When they came to sell they made a profit. When they paid the principal to 'Umar he asked, 'Did he lend everyone in the army the like of what he lent you?' They said, 'No.' 'Umar ibn al-Khattab said, 'He made you the loan because you are the sons of the Amir al-Muminin, so pay the principal and the profit.' 'Abdullah was silent. 'Ubaydullah said, 'You do not need to do this, Amir al-Muminin. Had the principal decreased or been destroyed, we would have guaranteed it.' 'Umar said, 'Pay it.' 'Abdullah was silent and 'Ubaydullah repeated what he had said. A man who was sitting with 'Umar said, 'Amir al-Muminin, better that you make it a qirad loan.' 'Umar said, 'I have made it a qirad.' 'Umar then took the principal and half of the profit, and 'Abdullah and 'Ubaydullah, the sons of 'Umar ibn al-Khattab, took half of the profit."
2 Malik related to me from al-'Ala' ibn 'Abd ar-Rahman from his father from his father that 'Uthman ibn 'Affan gave him some money as qirad to use provided the profit was shared between them.
32.2 What is Permitted in Qirad
3 Malik said, "The recognised and permitted form of qirad is that a man take capital from an associate to use. He does not guarantee it and in travelling pays out of the capital for food and clothes and what he makes good use of, according to the amount of capital. That is, when he travels to do the work and the capital can support of it. If he remains with his people, he does not have expenses for clothing from the capital."
Malik said, "There is no harm in the two parties in a qirad helping each other by way of a favour when it is acceptable to them both."
Malik said, "There is no harm in the investor of the capital buying some of the goods from the agent in the qirad if that is acceptable and without conditions."
Malik spoke about an investor making a qirad loan to a man and his slave, to be used by both. He said, "That is permitted, and there is no harm in it because the profit is property for his slave, and the profit is not for the master until he takes it from him. It is like the rest of his earnings."
32.3 What is Not Permitted in Qirad
4 Malik said, "When a man owes money to another man and he asks him to let it stay with him as a qirad, that is disapproved of until the creditor receives his property. Then he can make it a qirad loan or keep it. That is because the debtor may be in a tight situation and want him to defer that for an increase it in it."
Malik spoke about an investor who made a qirad loan to a man in which some of the principal was lost before being used. Then he used it and realised a profit. The agent wanted to make the principal the remainder of the money after what was lost from it. Malik said, "His statement is not accepted, and the principal is made up to its original amount from his profit. Then they divide what remains after the principal has been repaid according to the conditions of the qirad."
Malik said, "A qirad loan is only good in gold and silver coin and it is never permitted in any kind of wares or goods or articles."
Malik said, "There are certain transactions which if a long span of time passes after the transaction takes place, its revocation becomes unacceptable. As for usury, there is never anything except its rejection whether it is a little or a lot. What is permitted in other than it is not permitted in it because Allah, the Blessed and the Exalted, said in His Book, 'But if you turn in repentance you may have your capital, without wronging and without being wronged.' (2:279)"
32.4 Conditions Permitted in Qirad
5 Yahya said that Malik spoke about an investor who made a qirad loan and stipulated to the agent that only certain goods should be bought with his money or he forbade that certain goods, which he named, be bought. He said, "There is no harm in an investor making a condition on an agent in qirad not to buy a certain kind of animal or goods which he specifies. It is disapproved of for an investor to make a such condition on an agent in qirad unless what he orders him to buy is in plentiful supply and does not fail in winter or summer. There is no harm in that case."
Malik spoke about an investor who loaned qirad money and stipulated that a set amount of the profit should be his alone without the agent sharing in it. He said, "That is not good, even if it is only one dirham - unless he stipulates that half the profit is his and half the profit is the agent's or a third or a fourth or whatever. When he names a percentage, whether great or small, everything specified by that is halal. This is the qirad of the Muslims."
He said, "It is also not good if the investor stipulates that one dirham or more of the profit is purely his, without the agent sharing it and then what remains of the profit to be divided in half between them. That is not the qirad of the Muslims."
32.5 Conditions Not Permitted in Qirad
6 Yahya said that Malik said, "The person who puts up the principal must not stipulate that he has a portion of the profit alone without the agent sharing in it, nor must the agent stipulate that he has a portion of the profit alone without the investor sharing. In qirad, there is no sale, no rent, no work, no advance, and no convenience which one party specifies to himself without the other party sharing, unless one party allows it to the other unconditionally as a favour which is accepted by both. Neither of the parties should make a condition over the other which increases him in gold or silver or food over the other party."
He said, "If any of that enters into the qirad, it becomes hire, and hire is only good when it has known and fixed terms. The agent should not stipulate when he takes the principal that he repay or commission specific persons with the goods, nor that he take any of them for himself. When there is a profit, and it is time to separate the capital, then they divide the profit according to the terms of the contract. If the principal does not increase or there is a loss, the agent does not have to make up for what he spent on himself or for the loss. That falls to the investor from the principal. Qirad is permitted upon whatever terms the investor and the agent make a mutual agreement - half the profit, or a third, or a fourth, or whatever."
Malik said, "It is not permitted for the agent to stipulate that he use the qirad for a certain number of years and that it not be taken back from him during that time."
He said, "It is not good for the investor to stipulate that the qirad money should not be returned for a certain number of years which are specified, because the qirad is not for a term. The investor loans it to an agent to use for him. If it seems proper to either of them to abandon the project and the money is coin, and nothing has been bought with it, it can be abandoned and the investor takes back his money. If it seems proper to the investor to take the qirad loan back after goods have been purchased with it, he cannot do so until the buyer has sold the goods and they have become money. If it seems proper to the agent to return the loan, and it has been turned to goods he cannot do so until he has sold them. He returns the loan in cash as he took it."
Malik said, "It is not good for the investor to stipulate that the agent pay any zakat due from his portion of the profit in particular, because by stipulating that, the investor stipulates fixed increase for himself from the profit because the portion of zakat he would be liable for by his portion of the profit is removed from him.
"It is not permitted for the investor to stipulate to the agent to only buy from so-and-so, referring to a specific man. That is not permitted because by doing so he would become his hireling for a wage."
Malik spoke about an investor in qirad who stipulated a guarantee for an amount of money from the agent, "The investor is not permitted to stipulate conditions about his principal other than the conditions on which qirad is based or according to the precedent of the sunna of the Muslims. If the principal is increased by the condition of guarantee, the investor has increased his share of the profit because of the position of the guarantee. But the profit is only to be divided according to what it would have been had the loan been given without the guarantee. If the principal is destroyed, I do not think that the agent has a guarantee held against him because the stipulation of guarantee in qirad is null and void."
Malik spoke about an investor who gave qirad money to a man and the man stipulated that he would only buy palms or animals with it because he sought to eat the dates or the offspring of the animals and he kept them for some time to use for himself. He said, "That is not permitted. It is not the sunna of the Muslims in qirad unless he buys it and then sells it as other goods are sold."
Malik said, "There is no harm in the agent stipulating on the investor the inclusion of a slave to help him provided that the slave stands to gain along with them out of the investment, and when the slave only helps him with the investment, not with anything else."
32.6 Qirad in Wares
7 Yahya said that Malik said, "No one should make a qirad loan except in coin because the loan must not be in wares since loaning wares can only be worked in one of two ways: either the owner of the wares says to the borrower, 'Take these wares and sell them. Buy and sell with the capital realized according to qirad.' The investor stipulates increase for himself from the sale of his goods and what relieves him of expense in selling it. Or else he says, 'Barter with these goods and sell. When you are through, buy for me the like of my goods which I gave you. If there is increase, it is between you and me.' It may happen that the investor gives the goods to the agent at a time in which they are in demand and expensive, and then the agent returns them while they are cheap and he might have bought them for only a third of the original price or even less than that. The agent then has a profit of half the amount by which the price of the wares has decreased as his portion of the profit. Or he might take the wares at a time when their price is low, and make use of them until he has a lot of money. Then those wares become expensive and their price rises when he returns them, so he buys them for all that he has so that all his work and concern have been in vain. This is an uncertain transaction and it is not good. If, however, that is not known until it has happened, then the wage an agent in qirad would be paid for selling that, is looked at and he is given it for his concern. Then the money is qirad from the day the money became cash and collected as coin and it is returned as a qirad like that."
32.7 Hire in Qirad
8 Yahya said that Malik spoke about a man who made a qirad loan to a man and he bought wares with it and transported them to a commercial centre. It was not profitable to sell them and the agent feared a loss if he sold them, so he hired transport to take them to another city, and he sold them there and made a loss, and the cost of the hire was greater than the principal.
Malik said, "If the agent can pay the cost of the hire from what the wares realize, his way is that. Whatever portion of the hire is not covered by the principal, the agent must pay. The investor is not answerable for any of it. That is because the investor only ordered him to trade with the principal. The investor is not answerable for other than the principal. Had the investor been liable, it would have been an additional loss to him on top of the principal which he invested. The agent cannot put that onto the investor."
32.8 Overstepping in Qirad
9 Yahya said that Malik spoke about an investor who made a qirad loan to a man who used it and made a profit. Then the man bought a slave-girl with all the profit and he had intercourse with her and she became pregnant by him, and so the capital decreased. Malik said, "If he has money, the price of the slave-girl is taken from his property, and the capital is restored by it. If there is something left over after the money is paid, it is divided between them according to the first qirad. If he cannot pay it, the slave-girl is sold so that the capital is restored from her price."
Malik spoke about an investor who made a qirad loan to a man, and the agent spent more than the amount of the qirad loan when buying goods with it and paid the increase from his own money. Malik said, "The investor has a choice if the goods are sold for a profit or loss or if they are not sold. If he wishes to take the goods, he takes them and pays the agent back what he put in for them. If the agent refuses, the investor is a partner for his share of the price in eiher increase and decrease according to what the agent paid extra for them from himself."
Malik spoke about an agent who took qirad money from a man and then gave it to another man to use as a qirad without the consent of the investor. He said, "The agent is responsible for the property. If it is decreased, he is responsible for the loss. If there is a profit, the investor has his stipulation of the profit and then the agent has his stipulation of what remains of the money."
Malik spoke about an agent who exceeded and borrowed some of the qirad money he had and bought goods for himself with it. Malik said, "If he has a profit, the profit is divided according to the condition between them in the qirad. If he has a loss, he is responsible for the loss.
Malik said about an investor who paid money to a man and the agent borrowed some of the cash and bought goods for himself with it, "The investor of the capital has a choice. If he wishes, he shares with him in the goods according to the qirad, and if he wishes, he frees himself of them, and takes all of the principal back from the agent. That is what is done with someone who oversteps."
32.9 Expenses Permitted in Qirad
10 Yahya said that Malik spoke about an investor who made a qirad loan to man. Malik said, "When the investment is large, the travelling expenses of the agent are taken from it. He can use it to eat and clothe himself in an acceptable fashion according to the size of the investment. If it saves him from trouble he can take a wage from some of the capital if it is large and he cannot support himself. There are certain jobs which an agent or his like are not responsible for, amongst them are collecting debts, transporting the goods, loading up and so forth. He can use the capital to hire someone to do that for him. The agent should not spend from the capital nor clothe himself from it while he resides with his family. It is only permitted for him to have expenses when he travels for the investment. The expenses are taken from the capital. If he is only trading with the property in the city in which he resides, he has no expenses or clothing from the capital."
Malik spoke about an investor who paid qirad money to an agent who went out with it and with his own capital. He said, "The expenses come from the qirad and from his own capital according to their proportions."
32.10 Expenses not Permitted in Qirad
11 Yahya said that Malik spoke about an agent who had qirad money with him and he spent from it and clothed himself. He said, "He cannot give away any of it, and neither a beggar nor anyone else is to be given any of it and he does not pay anyone compensation from it. If he meets some people and they bring out food and he brings out food, I hope it will be permitted for him to do so if he does not intend to bestow something on them. If he intends to do that or something like that without the permission of the investor, he must first get the sanction of the investor for it. If he sanctions it, there is no harm. If he refuses to sanction it, then he must repay it with like as compensation if he has something which is suitable."
32.11 Debts in Qirad
12 Yahya said that Malik said, "The generally agreed-on way of doing things among us about an investor who extends qirad money to an agent to buy goods and the agent then sells the goods for a price to be paid later, and has a profit in the transaction, and then the agent dies before he has received payment, is that if his heirs want to take that money, they have their father's stipulated portion from the profit. That is theirs if they are trustworthy enough to take the payment. If they dislike collecting it from the debtor and they refer him to the investor, they are not obliged to collect it and there is nothing against them and nothing for them by their surrendering it to the investor. If they do collect it, they have a share of it and expenses just as their father had. They take the place of their father. If they are not trustworthy enough to do so, they can bring someone reliable and trustworthy to collect the money. If he collects all the capital and all the profit, they are in the same position as their father was."
Malik spoke about an investor who extended qirad money to a man provided that he used it and was responsible for any delayed payment for which he sold it. He said, "This is an obligation on the agent. If he sells it for delayed payment, he is responsible for it."
32.12 Goods in the Qirad
13 Yahya said that Malik spoke about an investor who gave qirad money to a man and then the man sought a loan from the investor or the investor borrowed money from the agent, or the investor left goods with the agent to sell for him, or the investor gave the agent dinars to buy goods with. Malik said, "There is no harm if the investor leaves his goods with him knowing that if the agent did not have his money and he had asked a similar thing of him, he would still have done it because of the brotherhood between them or because it would have been no bother to him and that had the agent refused that, he would not have removed his capital from him, or if the agent had borrowed from the investor or carried his goods for him and he knew that, if the investor had not had his capital with him he would still have done the same for him, and had he refused him that, he would not have returned his capital to him. If that is true of both of them and it is in the way of a favour between them and it is not a condition in the terms of the qirad, it is permitted and there is no harm in it. If a condition comes into it, or it is feared that the agent is only doing that for the investor in order to safeguard the capital in his possession, or the investor is only doing that because the agent has taken his capital and will not return it to him, that is not permitted in qirad and it is part of what the people of knowledge forbid."
32.13 Loans in Qirad
14 Yahya said that Malik spoke about a man who loaned another man money and then the debtor asked him to leave it with him as a qirad. Malik said, "I do not like that unless he takes his money back from him, and then pays it to him as a qirad, if he wishes, or, if he wishes, keeps it."
Malik spoke about an investor who extended a man qirad money and the man told him that it was collected with him and asked him to write it for him as a loan. He said, "I do not like that unless he takes his money from him and then lends it to him or keeps it as he wishes. That is only out of fear that he has lost some of it and wants to defer it so that he can make up what has been lost of it. That is disapproved of and is not permitted and it is not good."
32.14 Accounting in Qirad
15 Yahya said that Malik spoke about an investor extending qirad money to an agent who made a profit and then wanted to take his share of the profit and the investor was away. He said, "He should not take any of it unless the investor is present. If he takes something from it, he is responsible for it until it is accounted for in the division of the capital."
Malik said, "It is not permitted for the parties involved in a qirad to account and divide property which is away from them until the capital is present and the investor is re-paid the principal in full. Then they divide the profit into their agreed portions."
Malik spoke about a man taking qirad money and buying goods with it while he had a debt. Then his creditors sought and found him while he was in a city away from the investor and was in possession of profitable merchandise whose good quality was clear. They wanted him to sell the merchandise for them so that they could take his share of the profit. Malik said, "None of the profit of the qirad is taken until the investor is present. He takes his principal and then the profit is divided mutually between them."
Malik spoke about an investor who put qirad money with an agent and he used it and had a profit. Then the principal was set aside and the profit divided. He took his share and added the share of the investor to his principal in the presence of witnesses he had called. Malik said, "It is not permitted to divide the profit unless the investor is present. If he has taken something he returns it until the investor has received the principal in full. Then what remains is divided into their respective portions."
Malik spoke about an investor who put qirad money with an agent. The agent used it and then came to the investor and said, "This is your portion of the profit, and I have taken the like of it for myself and I have retained your principal in full." Malik said, "I do not like that unless all the capital is present, the principal is there, and he knows that it is complete and he receives it. Then they divide the profit between them. He returns the principal to him if he wishes, or he keeps it. The presence of the principal is necessary out of fear that the agent might have lost some of it and so may want it not to be removed from him and to keep it in his hand."
32.15 A General View of Qirad
16 Yahya said that Malik spoke about an investor who put qirad money with an agent who bought goods with it and the investor told him to sell them. The agent said that he did not see any way of selling them at that time and they quarrelled about it. He said, "One does not pay any attention to what either of them say. The people of experience and insight concerning such goods are asked about these goods. If they can see any way of selling them, they are sold for them. If they think that it is time to wait, then they should wait."
Malik spoke about a man who took qirad money from an investor and used it, and when the investor asked him for his money, he said that he had it in full. When he held him to his settlement, he admitted, "I have lost such-and-such," and named a certain amount of money. He further said, "I only told you that so that you would leave it with me." Malik said, "He does not benefit by denying it after he had affirmed that he had all of it. He is answerable by his admission against himself unless he can produce evidence about the loss of that property which confirms what he has said. If he does not produce an acceptable reason he is answerable by his admission and his denial does not help him."
Malik said, "Similarly, had he said, 'I have had such-and-such a profit from the capital,' and then the owner of the capital asks him to pay him the principal and his profit, and then he says that he did not have any profit in it and had only said that so that it might be left in his possession, that does not help him. He is taken to account for what he affirmed unless he brings acceptable proof of what he hasaid so that the first statement is not binding on him."
Malik spoke about an investor who put qirad money with an agent who made a profit with it. The agent said, "I took the qirad from you provided that I would have two-thirds." The owner of the capital says, "I gave you a qirad provided that you had a third." Malik said, "The statement taken is that of the agent and he must take an oath on that if what he says resembles the known practice of qirad or is close to it. If he brings a matter which is unacceptable and people do not make qirad like that, he is not believed, and it is judged according to how a similar qirad would normally be."
Malik spoke about a man who gave a man one hundred dinars as a qirad. He bought goods with it and then went to pay the one hundred dinars to the owner of the goods and found that they had been stolen. The investor says, "Sell the goods. If there is anything over, it is mine. If there is a loss, it is against you because you lost it." The agent says, "Rather you must fulfil what the seller is owed. I bought them with your capital which you gave me." Malik said, "The agent is obliged to pay the price to the seller and the investor is told, 'If you wish, pay the hundred dinars to the agent and the goods are between you. The qirad is according to what the first hundred was based on. If you wish, you are free of the goods.' If the hundred dinars are paid to the agent, it is a qirad according to the conditions of the qirad. If he refuses, the goods belong to the agent and he must pay their price."
Malik spoke about two people in a qirad who settled up and the agent still had some of the goods which he used - threadbare cloth or a waterskin or something like that. Malik said, "Any of that which is insignificant is of no importance and belongs to the agent. I have not heard anyone give a decision calling for the return of that. Anything which has a price is returned. If it is something which has value like an animal, camel, coarse cloth or suchlike which fetches a price, I think that he should return what he has remaining of such things unless the owner overlooks it."
33 Sharecropping (Musaqa)
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."
34 Renting Land
34.1 Renting Land
1 Yahya related to me from Malik from Rabi'a ibn 'Abd ar-Rahman from Hanzala ibn Qays az-Zuraqi from Rafi' ibn Khadij that the Messenger of Allah, may Allah bless him and grant him peace, forbade renting out fields.
Hanzala said, "I asked Rafi' ibn Khadij about paying rent in gold and silver and he said, "There is no harm in it."
2 Malik related to me that Ibn Shihab said, "I asked Sa'id ibn al-Musayyab about renting land for gold or silver and he said, 'There is no harm in it.' "
3 Malik related to me from Ibn Shihab that he asked Salim ibn 'Abdullah ibn 'Umar about renting out fields. He said, "There is no harm if it is done with gold or silver." Ibn Shihab said, "I said to him, 'What do you think of the hadith which is mentioned from Rafi' ibn Khadij?' He replied, 'Rafi' has exaggerated. If I had a field, I would rent it out.' "
4 Malik related to me that he had heard that 'Abd ar-Rahman ibn 'Awf rented some land which he remained on until he died. His son said, "I thought that it belonged to us because of the length of time which it had been in his hands until he mentioned it to us at his death. He ordered us to pay some rent which he owed in gold or silver."
5 Malik related to me from Hisham ibn 'Urwa that his father used to rent out his land for gold and silver.
Malik was asked about a man who rented out his field for one hundred sa's of dates or part of its produce of wheat or from produce from another source. He disapproved of that.
35 Pre-emption in Property
35.1 Cases in which Pre-emption is Possible
1 Yahya related to me from Malik from Ibn Shihab from Sa'id ibn al-Musayyab and from Abu Salama ibn 'Abd ar-Rahman ibn 'Awf that the Messenger of Allah, may Allah bless him and grant him peace, allocated partners the right of pre-emption in property which had not been divided up. When boundaries had been fixed between them, then there was no right of pre-emption.
Malik said, "That is the sunna about which there is no dispute among us."
2 Malik said that he had heard that Sa'id al-Musayyab, when asked about pre-emption and whether there was any sunna about it, said, "Yes. Pre-emption applies to houses and land, and it only applies between shareholders."
3 Malik related to me that he heard the like of that from Sulayman ibn Yasar.
Malik spoke about a man bringing one of his partners in a shared property by paying the man with an animal, a slave, a slave-girl or some such equivalent in goods. Then later on another of the partners decides to exercise his right of pre-emption, and he finds that the slave or slave-girl has died and no one knows what her value had been. The buyer claims that the value of the slave-girl was a hundred dinars while the partner with the right of pre-emption claims that her value was only fifty dinars.
Malik said, "The buyer takes an oath that the value of his payment was a hundred dinars. Then, if the one with the right of pre-emption wishes, he can compensate him or else he can leave it, unless he can bring clear proof that the slave or slave-girl's value was less than what the buyer has said. If someone gives away his portion of a shared house or land and the recipient repays him for it with cash or goods, the partners can take it by pre-emption if they wish and pay off the recipient the value of what he gave in dinars or dirhams. If someone makes a gift of his portion of a shared house or land and does not take any remuneration and does not seek to do so, and a partner wants to take it for its value, he cannot do so as long as the original partner has not been given recompense for it. If there is any recompense, the one with the right of pre-emption can have it for the price of the recompense."
Malik spoke about a man who bought into a piece of shared land for a price on credit, and one of the partners wanted to possess it by right of pre-emption. Malik said, "If it seems likely that the partner can meet the terms, he has the right of pre-emption for the same credit terms. If it is feared that he will not be able to meet the terms, but he can bring a wealthy and reliable guarantor of equal standing to the person who bought the land, he can also take possession."
Malik said, "A person's absence does not sever his right of pre-emption. Even if he is away for a long time, there is no time limit after which the right of pre-emption is cut off."
Malik said that if a man left land to a number of his children, then one of them who had a child died, and the child of the deceased sold his right in that land, the brother of the seller was more entitled to pre-empt him than his paternal uncles, the father's partners."
Malik said, "This is what is done in our community."
Malik said, "Pre-emption is shared between partners according to their existing shares. Each of them takes according to his portion - if it is small, he has little, if it is great, it is according to that. That is if they are obstinate and contend with each other about it."
Malik said, "In the situation where a man buys out the share of one of his partners, and then one of the other partners says, 'I will take a portion according to my share,' and the first partner says, 'If you wish to take all the pre-emption, I will give it up to you. If you wish to leave it, then leave it,' then if the first partner gives him the choice and hands it over to him, the second partner can only take all the pre-emption or give it back. If he takes it, he is entitled to it. If not, he has nothing."
Malik spoke about a man who bought land and developed it by planting trees or digging a well etc. and then someone came and, seeing that he had a right in the land, wanted to take possession of it by pre-emption. Malik said, "He has no right of pre-emption unless he compensates the other for his expenditure. If he gives him a price which covers what he has developed, he is entitled to pre-emption. If not, he has no right to it."
Malik said that someone who sold off his portion of a shared house or land and then, on learning that someone with a right of pre-emption was to take possession by that right, asked the buyer to revoke the sale, and he did so, did not have the right to do that. The pre-emptor has more right to the property for the price for which he sold it.
Referring to the case of someone buying an animal and goods (that are not shared property) along with a section of a shared house or land so that when anyone demands his right of pre-emption in the house or the land, he says, "Take what I have bought altogether, for I bought it together," Malik said, "The pre-emptor need only take possession of the house or land. Each thing the man bought is assessed according to its share of the lump sum the man paid. Then the pre-emptor takes possession of his right for a price which is appropriate on that basis. He does not take any animals or goods unless he wants to do so."
Malik said, "If someone sells a section of shared land and one of those who have the right of pre-emption surrenders it to the buyer and another insists on taking his pre-emption, the one who refuses to surrender has to take up all the pre-emption and he cannot take according to his right and leave what remains.
"In the case where one of a number of partners in a single house sells his share when all his partners are away except for one man, and the one present, when given the choice of either taking the pre-emption or leaving it, declares, 'I will take my portion and leave the portions of my partners until they are present. If they take it, that is that. If they leave it, I will take all the pre-emption,' Malik said, 'He can only take it all or leave it. If his partners come, they can take their portion from him or leave it as they wish. If this is offered to him and he does not accept it, I think that he has no pre-emption.' "
35.2 Cases in which Pre-emption is not Possible
4 Yahya said that Malik related from Muhammad ibn 'Umara from Abu Bakr ibn Hazm than 'Uthman ibn 'Affan said, "There is no pre-emption with land in which boundaries have been fixed. There is no pre-emption with a well or in male palm-trees."
Malik said, This is what is done in our community."
Malik said, "There is no pre-emption with a road, whether or not it is practicable to divide it."
Malik said, "What is done in our community is that there is no pre-emption with the courtyard of a house, whether or not it is practicable to divide it."
Malik spoke about a man who bought into a shared property provided that he had the option of withdrawal and the partners of the seller wanted to take what their partner was selling by pre-emption before the buyer had exercised his option. Malik said, "They cannot do that until the buyer has take possession and the sale is confirmed for him. When the sale is confirmed, they have the right of pre-emption."
Malik spoke about a man who bought some land which remained in his possession for some time. Then a man came and saw that he had a share of the land by inheritance. Malik said, "If the man's right of inheritance is established, he also has a right of pre-emption. If the land has produced a crop, the crop belongs to the buyer until the day when the right of the other is established, because he has tended what was planted against being destroyed or being carried away by a flood."
Malik continued, "If it has been a very long time, or the witnesses are dead, or the seller has died, or they are both alive but the basis of the sale and purchase has been forgotten because of the length of time, pre-emption is discontinued. A man only takes his right by inheritance which has been established for him.
"If his situation is not like this because the sale transaction is a recent one and he sees that the seller has concealed the price in order to sever his right of pre-emption, the value of the land is estimated, and then he buys the land for that price by his right of pre-emption. Then he buys the land for that price by his right of pre-emption. Then the buildings, plants or structures which are extra to the land are looked at so that he is in the position of the person who has bought the land for a known price and then after that has built on it and planted. The holder of the pre-emption takes possession after this is concluded."
Malik said, "Pre-emption applies to the property of the deceased as it does to the property of the living. If the family of the deceased fear to break up the property of the deceased, then they share in it and sell it, and they have no right of pre-emption over it."
Malik said, "There is no pre-emption among us in the case of a slave or slave-girl, or a camel, any animal, nor in clothes or a well which does not have any uncultivated land around it. Pre-emption pertains to what can be usefully divided, and to land in which boundaries occur. As for what cannot be usefully divided, there is no pre-emption in it."
Malik said, "Someone who buys land in which people at hand have a right of pre-emption refers them to the Sultan and either they claim their right or the ruler surrenders it to him. However, if he were to leave them and not refer their situation to the ruler whilst they knew about his purchase but they leave it a long time before coming to demand their pre-emption, I do not think that they should have it."
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