Muwatta Malik — Hadith #35844

Sulaiman Ibn Yassar reported that the Messenger of Allah (salallahu alayhi wa salam) (Upon him be the grace and peace of Allah) sent to Khaibar Abdallah Ibn Rawaha, charging him with estimating the picking of dates and its sharing with the Jews. One day, the rapporteur continues, the Jews brought him their wives' jewelry, saying: "This is for you, if you give us back and give us more than half." Then Abdullah said to them: “O Jews! By Allah, you are the most hideous creatures towards me. However, this will not push me to be unfair to you, because it is only an illegal bribe that we will hardly eat. They answered him, “Indeed, according to this righteousness the earth and the heavens were established.” - Malek said: “If a man waters palm groves where a part is fallow, what he plants and harvests there will be for him.” Also, if the owner of the land wants any new plantation to belong to him, this is not accepted, because the man who has been entrusted with watering will be responsible for additional work, not part of the advanced condition. ^ On the other hand, there is no harm in the harvest being shared if the expenses of sowing, watering and maintenance costs are the responsibility of the partner. In the event that the partner stipulates to the owner of the land, the condition that the price of the seed is the responsibility of the latter, this is not accepted, because of this way, the partner would have charged the owner with an expense considered as surplus to capital. The watering and sowing contract requires the partner to assume all expenses without the owner of the land taking responsibility for anything. Besides, this is what is appropriate in a contract. - If a water source is the possession of two men, and its water dries up, and one of the two men wants to obtain its water, by carrying out some work there to recover this water, while the other refuses it, we will say to the first: “You have to dig so that you have all the quantity of water which you use to water your land. If your partner comes to claim his share of water, you will ask him for half of the payment that the work cost. If he ever accepts, he will have his share of water, otherwise you will have the whole quantity. - If all costs and expenses are assumed by the owner of the garden and the partner will only have his manual labor in this garden in respect of which he will have a share of the harvest, this is not tolerated because the partner's salary is not specified and he will not know whether he will have his full salary or not by correspondence at the harvest. - Neither the sponsor nor the person who makes a watering and sowing contract is allowed to make an exception for a sum of money, nor for certain palm trees, without both approving it because in this case, one would be considered an employee in relation to the other, namely that the owner of the capital will say to the other: “I conclude a contract with you on the condition that you take care of the palm trees, water them and pollinate them; and I will pay you another ten dinars if you work and this money will not be part of the capital”, Malek said: “This is not allowed and this is what is done in our country”. - What is a rule put into practice in the watering contract is to allow the owner of the garden to stipulate to his partner the insurance of works such as: firmly maintaining the walls, cleaning the water source, getting rid of stagnant water found around the palm trees, pollinating the palm trees, cutting dry branches, picking dates, and carrying out other similar work. However, the partner will have in this case, half of the harvest or less depending on what is dictated in this contract, or even more, if they agree on this point. On the other hand, the owner of the garden will not be able to impose other additional work on his partner such as digging a well, or raising water from a spring, or planting trees by paying their price, or building a rampart around a water basin, in short, work at expense. This case is equivalent to that of the owner of a garden asking a person to build him a house in a certain place, or to drill a well for him, or to dig a water source for him or other work, in exchange for which he will have half the quantity of the fruits of his garden, even before they are ripened and consumables. It will be like a sale of fruits before they are discussed, but this is what was prohibited by the Messenger of Allah r (salallahu alayhi wa salam). - However, if the fruits are already ripened and are for sale or consumption, it is tolerated for a man to say to another: “perform some work for me (mentioned above), specifying them, and you will have half the quantity of fruits from my garden”, because in this way, he would have charged him with work for a specific salary, which he has known and accepted. As for the watering contract, in the event that the garden no longer has fruit trees or even that the fruits have diminished or are ravaged, under the effect of a plague, the partner will only have what is his right from the harvest. We can only recruit a man for a very specific job, because recruitment is considered in the same way as a sale, where we buy from the worker his work, and this is not tolerated, if it is done randomly, because the Messenger of Allah (salallahu alayhi wa salam) r (Upon him the grace and peace of Allah) has prohibited random sale", i - The rule followed in the watering contract is that it depends on the fruit trees such as palm trees, vines, olive trees, pomegranate trees, plum trees and other trees similar to them. This is tolerated provided that the owner has half the quantity of fruit, or a third or a quarter, or more or less. - He is also permitted in the watering contract, as soon as a plantation grows and becomes robust that the owner is incapable of watering it, working it, and caring for it. - However, the watering contract is inadmissible, once the fruits or other types of harvest become ripe, consumable and satisfactory for sale, but it can, if necessary, be concluded for a following year. So in the previous case, as soon as the fruits become ripe, the owner can pay the other person a salary, in gold or silver, so that he cuts the date palms. Therefore the watering contract is permitted during the period of the cut, and the time when the fruits will be ripe and suitable for sale. - Also the watering contract is tolerated, when it concerns the watering of trees whose fruits are not yet ripe and edible and good for sale. - On the other hand, it is not tolerated to conclude a watering contract for land that has not been sown or planted; However, its owner is tolerated to return the land, for a price paid in gold or silver or at another known price. - Likewise, whether a man delivers his unsown or planted land to another to sow it for a third or a quarter of the harvest that could be produced, this is considered random, because it is possible that the planting yields a profit or that it yields nothing at all. Thus, the owner of the land will have neglected the rental which could make his land fertile, preferring what is random, while not knowing whether this will happen or not; Now this is repugnant, because the case of this owner is like that of a man who hires another for a certain journey, saying to him: "do you want me to give you a tenth of the profit of my business, as wages"? This is neither lawful nor tolerated.” - It is not tolerated for a man to engage in any work, or to rent his land or his ship, except for a well-specified sum. - And, said Malek, a distinction must be made between the watering contract concluded for land planted with palm trees, and that which is concluded for land not planted; thus the owner of the first will only be able to sell the fruits once they appear ripe; as for the other, he will be able to cultivate his land as long as it is not yet planted. - The rule followed in Medina allows you to conclude a watering contract for three or four years, or even more or less for palm trees, moreover, said Malek, this is what I heard about such a contract concerning palm trees and any other fruit tree where the owner is allowed to conclude, for years, a watering contract. - Concerning the owner of a garden, Malek said, it is not allowed for him to take from his partner who gave him water, nor gold, nor money, nor food, nor anything else, because this is not tolerated. Likewise, it is not allowed the partner giving the water to take from his partner neither gold, nor silver, nor food, nor anything of the sort. As for what is surplus, for both, it is also not permitted. - Likewise, said Malek, the sponsor is treated just like the one who gives water, if ever there is a surplus in the watering, or even if the sum sponsored turns to be a salary, moreover, anything which will bring into play, a salary, is not tolerated, especially since this salary is considered random. And we won't know if we will have the whole harvest, or more or less. - Concerning the man, who enters into a watering contract, for the land of a man, where there are palm trees and vines or other similar trees, and there is a part of the uncultivated land, Malek said: "If the unplanted part is auxiliary to that which is planted and which moreover constitutes the major part of the land, there is no harm in this, provided that the part planted with palm trees is two thirds or more, and that which is not, be by a third or at least. Thus if the uncultivated part forms two thirds where there are palm trees, vines or other similar trees, it is tolerated that one pays a salary for watering without there being a contract which is prohibited. Because it is the habit of people to conclude a watering contract when it concerns land where the planted part is major, while it contains an uncultivated part. He is allowed to rent uncultivated land, against a remuneration, even if it contains a planted part, just as one sells the Koran or the sword while each having a silver ornament, or even the medallion or the ring encrusted with precious stones, sold for gold. And such sales are practiced by people, as well as purchases, without putting forward, on this subject, precise criteria (inspired by the Koran or the sunnah) stipulating that, when the main material constitutes half or less, this is prohibited; and if it is otherwise, this rental is permitted. The rule followed in Medina, which people elsewhere continue to practice and allow among themselves, is the following: if the precious stone in question constitutes only the lower part of the object made of gold or silver, there is no harm in that, such as the case of the sword or the Koran or the ring, valued for more than two thirds, and the ornament for the remaining third or even less", Chapter II The condition provided for with regard to slaves in the watering contract (1414) 3-Malek said: “The best thing I have heard said about the slaves hired by the one who is responsible for watering according to the contract he concludes with the owner of the land is that they are taken in the same way as capital, from which their master will draw no profit. If he does not make them work, it is up to him to provide them with food, sometimes requiring excessive costs. They are considered just like watering from a flowing spring or using water carried on the backs of camels. And you will not find a man making a watering contract for two pieces of land bringing the same benefit, such that the first is watered with water coming from an inexhaustible source, and the other is watered with water that is drawn and where for the first, one pays insignificant costs to maintain the source, as for the other, this requires excessive costs. This is the rule followed in Medina. And by insistence, Malek says: “the inexhaustible source is the one which does not have to be punctured, and whose water is always abundant”. - It is not permitted for the owner of the land to charge employees with carrying out other work (than watering) nor to request it from his partner. Nor is it permissible for the person responsible for watering to ask the owner of the land to make slaves work there when they were not working according to the contract.” - It is not permitted for the owner of the land to ask the person responsible for watering to remove one of the wage slaves from the contract. So, if he wants to dismiss it, he must do so before entering into the contract. Therefore he is not allowed to enlist a new employee, only before concluding the “contract”. - In the event that one of the slaves dies, or is absent or falls ill, it is the owner's responsibility to find another to replace him. MOUATTAA Au Name of Allah The Beneficent The Merciful Book 34 The Book of Renting the Land Chapter One About the Renting of the Land