Jump to content

Draft:Muzāraʿa

From wikishia


Muzāraʿa (sharecropping) and Musāqāt (sharecropping of trees) are among the religious contracts in matters related to agriculture and gardening. Muzāraʿa is a transaction in which one of the parties hands over a piece of land for a specific period to the other party to farm in it in exchange for a share of the land's produce. Musāqāt is also a transaction in which a person works on the trees of another person in exchange for a share of their produce (fruit, leaves, or flowers).

Muzāraʿa and musāqāt are permissible according to most Muslim jurists. They have derived the permissibility and legitimacy of these two transactions by referring to narrations and the consensus of jurists. An independent chapter has been dedicated to muzāraʿa and musāqāt among the jurisprudential sections, and in it, jurists have explained the rulings that are common between these two transactions and the rulings specific to each.

One of the conditions for the validity of muzāraʿa and musāqāt is that at the time of the contract, the share of each party must be determined as a joint share (mushāʿ) such as half, one-third, or one-fourth, and also the duration of the muzāraʿa and musāqāt must be known.

According to jurists, muzāraʿa and musāqāt are considered binding contracts ('aqd lāzim), and neither party can cancel it without the consent of the other.

Some jurists have considered muʿāṭātī muzāraʿa and musāqāt to be valid. In muʿāṭātī muzāraʿa and musāqāt, without the formula being recited verbally, the owner hands over his land or garden to the farmer or gardener with the intention of working in it, and he starts working with the same intention.

Status

Muzāraʿa and musāqāt are considered religious contracts that are discussed in jurisprudence.[1] According to Sayyid Muhammad Sa'id al-Hakim, a Shi'a jurist, muzāraʿa and musāqāt share and are similar in many rulings;[2] hence, in some jurisprudential works such as Sharāʾiʿ al-Islām,[3] al-Mukhtaṣar al-Nāfiʿ[4] and Wasāʾil al-Shīʿa[5], it is discussed within one book or jurisprudential chapter.[6]

According to jurists, the word "musāqāt" is not explicitly mentioned anywhere in the Qur'an and narrations, and this word was later coined by jurists; therefore, in the categorization of the jurisprudential books of the early Shi'a, only muzāraʿa is mentioned as one of the jurisprudential chapters[7] and hadiths and discussions related to musāqāt are raised under it.[8]

Muzāraʿa and musāqāt are permissible according to most Muslim jurists.[9] To state the permissibility and legitimacy of these transactions, they have referred to proofs such as narrations[10] and consensus.[11] [12] In addition, Sayyid Yazdī believes that these are rational transactions, and no prohibition regarding them has been issued by the Lawgiver (Shāriʿ).[13]

Etymology

Muzāraʿa is a transaction based on which one of the parties hands over a piece of land for a specific period to the other party to farm in it and divide the resulting produce between them.[14] Muzāraʿa lexically is derived from the word "zarʿ" and this word has two meanings: one meaning planting seeds in the ground[15] and the other meaning making something grow (inbāt).[16]

Musāqāt is a transaction in which a person works on the trees of another person in order to own a share of the produce of these trees (fruit, leaves, or flowers) in exchange for his work.[17] The word musāqāt is derived from the root "saqy" meaning "to irrigate"[18] and since irrigating the trees is the most apparent and beneficial work paid attention to in the transaction, this transaction is named "musāqāt".[19]

According to jurists, the contracts of muzāraʿa and musāqāt require offer and acceptance (ījāb wa qabūl).Template:Note[20] Offer and acceptance in muzāraʿa is that the landowner says "I handed over the land to you for farming" and the other party says "I accepted,"[21] and in the musāqāt contract, it is that the owner of the trees says "I handed over the trees to you for irrigation and cultivation" and the other party says "I accepted."[22]

Rulings

Muzāraʿa and musāqāt share some rulings and differ in others:

Common Rulings

Some of the rulings common between muzāraʿa and musāqāt are:

  • According to some jurists, offer and acceptance in muzāraʿa and musāqāt is valid in Arabic, Persian, or any other language.[23] According to Al-Shahid al-Thani, the words of offer and acceptance must be in Arabic.[24]
  • According to some jurists, offer and acceptance can be practical, which in terminology is called a muʿāṭātī contract; meaning without saying anything, the owner hands over the land or garden with the intention of working on them, and the farmer or gardener takes delivery.[25]
  • According to the fatwa of most jurists,[26] at the time of the contract, the share of each of the transacting parties from the entire produce must be determined jointly (mushāʿ) such as half, one-third, one-fourth. So if, for example, the owner says "work in this land or garden and something from its produce will be for me and something for you," or if they agree that, for example, 100 kilos of the produce will be for the owner and the rest for the gardener, the transaction is invalid.[27]
  • According to most jurists, the duration of muzāraʿa and musāqāt must be known.[28] Determining the duration is by month, year, or season.[29] Of course, the duration must be long enough that obtaining the produce within it is customarily possible, and if it is less than that, the transaction is invalid.[30]
  • Muzāraʿa and musāqāt are considered binding contracts.[31] A binding contract ('aqd lāzim) is a contract that neither party can cancel or revoke without the consent of the other.[32]
  • In muzāraʿa and musāqāt, the option (khiyār) (the right to cancel the contract) is established by one of the following:
  1. It is stipulated within the contract that either party has the right to cancel the contract.[33]
  2. If one of the parties violates the matters entrusted to him in the contract, for example, if the owner refuses to hand over the land or tree to the other party, the other party can cancel the contract, or if the other party does not complete his work within the specified time, the owner can cancel the contract.[34]
  3. If the land or trees subject to the transaction lose the qualities mentioned in the contract; for example, due to the lack of water, they are not capable of being utilized, the farmer or gardener can cancel the transaction.[35]

Specific Rulings

Some of the specific rulings of each of muzāraʿa and musāqāt are as follows:

Muzāra'a

  • The land in question must be capable of cultivation, even if by improving it. So if, for example, the land is a salt marsh or entirely covered by water, or there is no water for irrigation and rainwater is not sufficient for it, in all these cases the land cannot be utilized and therefore the muzāraʿa is invalid.[36]
  • If a specific crop is intended, it must be determined at the time of muzāraʿa, and by the consensus of jurists, it is not permissible for the farmer to plant something else;[37] for example, they should determine whether it is rice or wheat, and if rice, which type it is. But if no specific crop is intended, the farmer has the option to plant whatever he wants.[38]
  • The land to be cultivated must be known.[39] Therefore, if the owner has several pieces of land that differ in agricultural work, they must determine it in the muzāraʿa; but if they do not differ, determination is not necessary, and the owner can give any of his lands to the farmer.[40]
  • In muzāraʿa, it is necessary to determine which of the parties is responsible for the expenses and provision of things such as seeds, fertilizer, agricultural equipment, and the like.[41] Of course, if it is customarily known whose responsibility it is, it is not necessary to explicitly determine it.[42]

Musāqāt

  • Musāqāt occurs on fruit trees[43] and according to some jurists, musāqāt is also valid on non-fruit-bearing trees like the henna tree whose leaves or flowers have financial value.[44]
  • According to some jurists, musāqāt is not valid for plants such as watermelon, melon, tomato, cucumber, and the like, and it must absolutely be a tree.[45] Jurists such as Sayyid 'Abd al-A'la Sabziwari[46] and Sayyid 'Ali Sistani[47] have also considered musāqāt in non-trees, meaning in plants, to be valid.
  • Transacting on trees that are watered through rainwater or by their roots from the moisture of the earth and do not need irrigation; if they need other work such as hoeing, fertilizing, and the like, is permissible.[48]
  • In musāqāt, it is necessary that the trees subject to musāqāt be known and determined for both parties.[49]
  • According to jurists, the contract of musāqāt is valid before the appearance of the fruit of the trees, but after the appearance of the fruit and before it ripens, if the trees need watering and this watering has an effect on the quantity and even quality of the fruits, the transaction is valid; but after the fruits ripen, even if they need work such as picking or protecting, the transaction is not valid.[50]

Mu'atati Muzara'a and Musaqat

In muʿāṭātī muzāraʿa and musāqāt, without reciting a specific contract (ījāb wa qabūl), the owner hands over his land or garden to the farmer or gardener with the intention of working in it, and he starts working with the same intention.[51]

There is a difference of opinion regarding the validity of the application of muʿāṭāt in muzāraʿa and musāqāt:

  • According to some jurists, muʿāṭāt is applicable in the contracts of muzāraʿa and musāqāt.[52] The author of Jawahir has said regarding the validity of the application of muʿāṭāt in muzāraʿa and musāqāt that firstly: just as muʿāṭāt is applicable in other contracts such as sale and lease, it is also applicable in muzāraʿa and musāqāt which are considered contracts;[53] secondly: there is a definitive custom (sīra) for it, and people have acted in this way, and no prohibition has been received from the Lawgiver.[54]
  • According to the view of jurists such as Al-Muhaqqiq al-Karaki and Al-Shahid al-Thani, the application of muʿāṭāt in muzāraʿa and musāqāt is not valid; because there is ignorance regarding the thing upon which the transaction is made ('iwaḍ) and therefore, according to the Gharar RuleTemplate:Note, the transaction is invalid; moreover, the probability of the existence of gharar in sale and lease is less than its existence in muzāraʿa and musāqāt.[55]

Notes

  1. Ḥakīm, Mustamsak al-ʿUrwat al-wuthqā, Dār Iḥyāʾ al-Turāth al-ʿArabī, vol. 13, p. 157.
  2. Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 9.
  3. Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 2, p. 118.
  4. Muḥaqqiq al-Ḥillī, al-Mukhtaṣar al-nāfiʿ fī fiqh al-Imāmiyya, 1410 AH, p. 148.
  5. Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, 1413 AH, vol. 19, p. 31.
  6. Ḥakīm, Miṣbāḥ al-Minhāj, al-Muzāraʿa wa l-Musāqāt, 1426 AH, p. 9.
  7. For example, see Shaykh al-Ṣadūq, al-Muqniʿ, 1415 AH, p. 389; Kulaynī, al-Kāfī, 1387 Sh, vol. 10, p. 389.
  8. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, pp. 50-51; Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, pp. 527-528.
  9. Jazīrī, al-Fiqh ʿalā madhāhib al-arbaʿa, 1419 AH, vol. 3, p. 32.
  10. For example, see Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, 1413 AH, vol. 19, p. 31.
  11. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, p. 50; Ḥakīm, Mustamsak al-ʿUrwat al-wuthqā, Dār Iḥyāʾ al-Turāth al-ʿArabī, vol. 13, p. 156.
  12. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, p. 2; Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 517.
  13. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 517.
  14. Shahīd al-Thānī, al-Rawḍat al-bahiyya fī sharḥ al-Lumʿat al-Dimashqiyya, 1410 AH, vol. 4, p. 275; Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, p. 2.
  15. Jawharī, al-Ṣiḥāḥ tāj al-lugha, 1407 AH, under the word "z-r-ʿ".
  16. Jazīrī, al-Fiqh ʿalā madhāhib al-arbaʿa, 1419 AH, vol. 3, p. 13.
  17. Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 2, p. 123; Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, p. 50; Shahīd al-Thānī, al-Rawḍat al-bahiyya fī sharḥ al-Lumʿat al-Dimashqiyya, 1410 AH, vol. 4, p. 310.
  18. Qayyūmī, Miṣbāḥ al-munīr, 1418 AH, vol. 1, p. 147.
  19. Shahīd al-Thānī, al-Rawḍat al-bahiyya fī sharḥ al-Lumʿat al-Dimashqiyya, 1410 AH, vol. 4, p. 309.
  20. Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 2, p. 123; Shahīd al-Thānī, al-Rawḍat al-bahiyya fī sharḥ al-Lumʿat al-Dimashqiyya, 1410 AH, vol. 4, p. 310; Shahīd al-Thānī, Masālik al-afhām, 1423 AH, vol. 5, p. 8.
  21. Sīstānī, Tawḍīḥ al-masāʾil, 1415 AH, p. 463.
  22. Sīstānī, "Tawḍīḥ al-masāʾil-i jāmiʿ (vol. 3)", Official website of the office of Grand Ayatollah Sayyid 'Ali Sistani.
  23. Muḥaqqiq al-Ardabīlī, Majmaʿ al-fāʾida wa l-burhān, Muʾassasat al-Nashr al-Islāmī, vol. 10, p. 96; Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 305; Sabzawārī, Muhadhdhab al-aḥkām, 1444 AH, vol. 20, p. 66.
  24. Shahīd al-Thānī, Masālik al-afhām, 1423 AH, vol. 5, p. 8.
  25. Khumaynī, Tawḍīḥ al-masāʾil, 1372 Sh, p. 72; Sīstānī, Tawḍīḥ al-masāʾil, 1415 AH, p. 463; Fāḍil Lankarānī, Tawḍīḥ al-masāʾil, 1374 Sh, p. 429.
  26. Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 26.
  27. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 408; Khumaynī, Taḥrīr al-wasīla, 1434 AH, vol. 1, p. 683; Tabrīzī, Tawḍīḥ al-masāʾil, 1374 Sh, p. 394.
  28. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, p. 14; Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 23.
  29. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 408; Khumaynī, Taḥrīr al-wasīla, 1434 AH, vol. 1, p. 683.
  30. Sīstānī, "Tawḍīḥ al-masāʾil-i jāmiʿ (vol. 3)", Official website of the office of Grand Ayatollah Sayyid 'Ali Sistani.
  31. Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 9.
  32. Shahīd al-Thānī, Masālik al-afhām, 1423 AH, vol. 5, p. 39.
  33. Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 10.
  34. Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 10.
  35. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, vol. 14, p. 420; Ḥakīm, Miṣbāḥ al-Minhāj (al-Muzāraʿa wa l-Musāqāt), 1426 AH, p. 10.
  36. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 409.
  37. Sabzawārī, Muhadhdhab al-aḥkām, 1444 AH, vol. 20, p. 94.
  38. Sīstānī, "Tawḍīḥ al-masāʾil-i jāmiʿ vol. (3)", Official website of the office of Grand Ayatollah Sayyid 'Ali Sistani.
  39. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 410.
  40. Sīstānī, "Tawḍīḥ al-masāʾil-i jāmiʿ vol. (3)", Official website of the office of Grand Ayatollah Sayyid 'Ali Sistani.
  41. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 411.
  42. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 411; Khumaynī, Taḥrīr al-wasīla, 1434 AH, vol. 1, p. 677.
  43. Shahīd al-Thānī, Masālik al-afhām, 1423 AH, vol. 5, p. 42.
  44. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 524.
  45. Shahīd al-Thānī, Masālik al-afhām, 1423 AH, vol. 5, p. 42; Shahīd al-Thānī, al-Rawḍat al-bahiyya fī sharḥ al-Lumʿat al-Dimashqiyya, 1410 AH, vol. 4, p. 312; Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 526; Tabrīzī, Tawḍīḥ al-masāʾil, 1374 Sh, p. 394.
  46. Sabzawārī, Muhadhdhab al-aḥkām, 1444 AH, vol. 20, p. 154.
  47. Sīstānī, "Tawḍīḥ al-masāʾil-i jāmiʿ (vol. 3)", Official website of the office of Grand Ayatollah Sayyid 'Ali Sistani.
  48. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 527.
  49. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 519.
  50. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, vol. 14, p. 522; Khumaynī, Taḥrīr al-wasīla, 1434 AH, vol. 1, p. 684.
  51. Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 518; Khumaynī, Taḥrīr al-wasīla, vol. 1, 1434 AH, p. 683; Sīstānī, Tawḍīḥ al-masāʾil, 1415 AH, p. 467.
  52. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, p. 53; Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1430 AH, vol. 14, p. 518; Khumaynī, Taḥrīr al-wasīla, 1434 AH, vol. 1, p. 683.
  53. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, pp. 53-54.
  54. Najafī, Jawāhir al-kalām, 1362 Sh, vol. 27, pp. 53-54.
  55. Muḥaqqiq al-Karakī, Jāmiʿ al-maqāṣid, 1414 AH, vol. 7, p. 345; Shahīd al-Thānī, Masālik al-afhām, 1423 AH, vol. 5, p. 38.

References

  • Tabrīzī, Jawād, Tawḍīḥ al-masāʾil, n.p., Surūr Publications, 1374 Sh.
  • Jazīrī, ʿAbd al-Raḥmān, al-Fiqh ʿalā madhāhib al-arbaʿa, Beirut, Dār al-Thaqalayn, 1419 AH.
  • Jawharī, Abū Naṣr, al-Ṣiḥāḥ tāj al-lugha, Beirut, Dār al-ʿIlm li-l-Malāyīn, fourth edition, 1407 AH.
  • Group of authors, Farhang-i fiqh-i Fārsī, Qom, Encyclopedia of Islamic Jurisprudence Institute, 1387 Sh.
  • Ḥurr al-ʿĀmilī, Muḥammad b. Ḥasan, Wasāʾil al-Shīʿa, Qom, Al al-Bayt Institute, 1413 AH.
  • Ḥakīm, Sayyid Saʿīd, Miṣbāḥ al-Minhāj, al-Muzāraʿa wa l-Musāqāt, n.p., Dār al-Hilāl, 1426 AH.
  • Ḥakīm, Sayyid Muḥsin, Mustamsak al-ʿUrwat al-wuthqā, Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabī, n.d.
  • Khumaynī, Sayyid Rūḥ Allāh, Taḥrīr al-wasīla, Qom, Institute for Compilation and Publication of Imam Khomeini's Works, 1434 AH.
  • Khumaynī, Sayyid Rūḥ Allāh, Tawḍīḥ al-masāʾil, Tehran, Ministry of Culture and Islamic Guidance Publications, 1372 Sh.
  • Sabzawārī, Sayyid ʿAbd al-Aʿlā, Muhadhdhab al-aḥkām, Syria, Dār al-Irshād, 1444 AH.
  • Sīstānī, Sayyid ʿAlī, Tawḍīḥ al-masāʾil, Qom, Mihr Publications, 1415 AH.
  • Sīstānī, Sayyid ʿAlī, "Tawḍīḥ al-masāʾil-i jāmiʿ (vol. 3)", Official website of the office of Grand Ayatollah Sayyid 'Ali Sistani, accessed: Azar 20, 1401 Sh.
  • Shahīd al-Thānī, Zayn al-Dīn b. ʿAlī, Masālik al-afhām, Qom, Muʾassasat al-Maʿārif al-Islāmiyya, 1423 AH.
  • Shahīd al-Thānī, Zayn al-Dīn b. ʿAlī, al-Rawḍat al-bahiyya fī sharḥ al-Lumʿat al-Dimashqiyya, Qom, Dāwarī Publications, second edition, 1410 AH.
  • Shaykh al-Ṣadūq, Muḥammad b. ʿAlī, al-Muqniʿ, Qom, Muʾassasat al-Imām al-Hādī (a), 1415 AH.
  • Ṭabāṭabāʾī Yazdī, Sayyid Muḥammad Kāẓim, al-ʿUrwat al-wuthqā, Qom, Sibṭayn Publications (15-volume set), 1430 AH.
  • Fāḍil Lankarānī, Muḥammad, Tawḍīḥ al-masāʾil, Qom, Mihr Publications, 1374 Sh.
  • Qayyūmī, Aḥmad b. Muḥammad, Miṣbāḥ al-munīr, n.p., al-Maṭbaʿat al-ʿAṣriyya, 1418 AH.
  • Kulaynī, Muḥammad b. Yaʿqūb, al-Kāfī, Qom, Dar al-Hadith, 1387 Sh.
  • Muḥaqqiq al-Ardabīlī, Aḥmad b. Muḥammad, Majmaʿ al-fāʾida wa l-burhān, Qom, Muʾassasat al-Nashr al-Islāmī, n.d.
  • Muḥaqqiq al-Ḥillī, Jaʿfar b. Ḥasan, Sharāʾiʿ al-Islām, Qom, Isma'iliyan Institute, second edition, 1408 AH.
  • Muḥaqqiq al-Ḥillī, Jaʿfar b. Ḥasan, al-Mukhtaṣar al-nāfiʿ fī fiqh al-Imāmiyya, Tehran, Qism al-Dirāsāt al-Islāmiyya fī Muʾassasat al-Biʿtha, 1410 AH.
  • Muḥaqqiq al-Karakī, Nūr al-Dīn ʿAlī b. Ḥusayn, Jāmiʿ al-maqāṣid, Qom, Muʾassasat Āl al-Bayt ʿalayhim al-salām, second edition, 1414 AH.
  • Najafī, Muḥammad Ḥasan, Jawāhir al-kalām, Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabī, seventh edition, 1362 Sh.
  • Yūsufī Badāf, Sayyid Muḥsin and Dāryūsh Bābāyī, "Naqsh-i ījāb wa qabūl dar ījād-i taʿahhudāt", Second National Conference of Interdisciplinary Humanities, 1395 Sh.