The Precepts of Mus¡q¡t and Mug¡rasah
2290. If a person forms an agreement with another individual to place some fruit trees—the fruits of which either belong to him, or the rights over them belong to him—at his disposal for a specific period of time, so that he may nurture and water them, and in return acquire an agreed abstractly defined portion of the fruits for himself, then such a contract will be known as a mus¡q¡t.
2291. Mus¡q¡t is not valid in trees which do not yield fruits, such as willow trees and plane trees. It is also problematic in trees like the henna tree whose leaves are (commonly) used.
2292. It is not necessary to utter the formal expression of the mus¡q¡t. In fact, if the owner of the trees places them in a worker’s possession, and he in turn accepts possession with the same intention, the agreement will be valid.
2293. Both the owner and the individual who takes care of the trees should be sane and b¡ligh, and no one should have wrongfully forced them into the agreement. In addition, the owner should not be an individual who has been prohibited from disposing of his property by the shari’a, such as a feeble-minded person (one who spends his money in futile ventures), or a person who has been prohibited by the ¦¡kim al-shar’yy from disposing of his property due to bankruptcy. The same conditions will also apply to the worker in the event that the work requires him to dispose of some of his own wealth. It is also not permissible to engage in a mus¡q¡t with a feeble-minded person without the permission of his guardian.
2294. The period of the mus¡q¡t should be known, and it must not be less than the period required for the fruits to ripen. If they choose to determine it by setting a particular day as the first day, and the day when the fruits of that year are harvested as the last day, it will be valid.
2295. The share of each party should be an abstractly defined fraction of the produce. Hence if they agree that—for example—100 kgs of the fruit would belong to the owner and the rest would belong to the worker, then such an agreement will not be valid.
2296. The mus¡q¡t contract should be signed before the fruits become apparent on the trees, or if it is signed after they do so, it should be prior to their ripening, provided that a task such as watering the trees is required for caring for the trees and increasing the produce. In a case other than this, even though there may be a need for harvesting the fruits and caring for them, the agreement will not be valid. In fact, if there is no need to water the trees to increase the quantity or quality of the produce, then even though it may be a task that is required for nurturing the trees, the validity of such an agreement will be problematic.
2297. It is problematic to claim the validity of a mus¡q¡t agreement with respect to fruits which grow on vines, such as watermelons and cucumbers.
2298. If a tree that is watered with rainwater or the wetness from the earth, and does not require any extra watering, requires other kind of care for increasing the quality or quantity of its fruits, such as digging and fertilizing, then a mus¡q¡t agreement with respect to it is valid.
2299. The parties that have signed a mus¡q¡t contract with each other may cancel it with the approval of the other party. Additionally, if they have stipulated within the contract that one or both of them reserves the right to cancel the agreement, then there is no problem in cancelling it according to the stipulated condition.
If a particular condition is stipulated within the mus¡q¡t contract, and the condition is not fulfilled, the party that was going to benefit from the condition may cancel the agreement. He may also choose—as is the case in all other conditions—to force the other party to fulfill the condition by reverting to a ¦¡kim al-shar’yy.
2300. If the owner passes away the mus¡q¡t contract will not be voided, and instead his heirs will take his place.
2301. If the person who has been tasked with caring for the trees passes away, and it has not been stipulated within the contract that the person himself care for the trees, then his heirs will take his place. If the heirs do not perform the task themselves, nor hire someone to do it, the ¦¡kim al-shar’yy may hire someone using the deceased’s estate, and divide the produce between the owner and the heirs.
However, if they had stipulated that the deceased person himself care for the trees, the contract will be voided upon his death.
2302. If it is stipulated that the entire produce belongs to the owner, the mus¡q¡t will be void and the fruits will belong to the owner. In addition, the person who is working (on the trees) cannot claim any wages.
However, if the contract is invalidated due to another reason, the owner must pay the standard wage to the person who cared for the trees for watering them and performing other tasks. In the event that the standard wage is higher than the amount agreed within the contract, to claim that the owner is obliged to pay the extra amount is problematic. The more precautionary measure is to reach a compromise settlement.
2303. If a person places a piece of land at the disposal of another person, so that he may cultivate the land, and the resulting produce would then be owned by both of them, then such a transaction—known as mug¡rasah—is void. Hence, if the trees belonged to the owner of the land, they shall continue to belong to him even after they are cultivated. He in return must pay wages to the person who cultivated them, unless the wages are more than what was specified for the worker. In this case, it is problematic to claim that giving the extra amount is mandatory, whilst precaution lies in reaching a compromise settlement.
However, if the trees belonged to the person who cultivated them, they will continue to belong to him after they are cultivated. He may also choose to excavate them. However, he must fill the holes that appear in the ground on account of excavating the trees. He must also pay rent to the owner of the land for the period starting from the day he planted the trees, unless the rent is greater than the amount that was apportioned for the owner from the cultivation of the trees. In this case, to claim that it is mandatory to give the extra amount is problematic, whilst precaution lies in reaching a compromise settlement.
The owner can also compel him to excavate the trees, and if doing so causes a defect to appear on the trees, the owner will not be responsible for it. However, if the owner himself excavates the trees, and a defect appears on the trees, he must pay for the difference in their prices to the owner of the trees. The owner of the trees cannot compel the owner of the land to let the trees remain on the land, be it through a rental agreement or otherwise. Similarly, the owner of the land cannot compel the owner of the trees to leave the trees on the land, be it through a rental agreement or otherwise.
