2288. If the mu¤¡ribah is cancelled, and a part of the capital or its entirety has been loaned, the worker must reclaim it from the debtor and return it to the owner.
2289. If the mu¤¡ribah capital lies with the worker and he passes away, then if the capital itself is known, it returns to the owner. If it is not known, it should be determined by drawing lots, or else the owner may reach a compromise settlement with his heirs.
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.
Individuals Who have been Interdicted from Disposing of Their Property
2304. A child who has not become b¡ligh cannot—according to the shari’a—dispose of his property. He cannot exercise discretion over his own liabilities either, by incurring a loan, becoming a guarantor, or any similar liability. The same applies to his ability to exercise any financial discretion over himself, by offering himself for hire, or becoming a worker in a mu¤¡ribah, a muz¡ra‘ah or any similar contract. As for his will with respect to his own property, its ruling will be elaborated in article 2761.
The signs of becoming b¡ligh are one of three phenomena:
1. The growth of thick hair below the navel and above the genitalia, in boys.
2. Ejaculation
3. The completion of fifteen lunar years in boys, and nine lunar years in girls, and observing the blood of ¦ay¤ in the case of a girl for whom it is not known whether she has completed nine lunar years or not.
2305. The growth of thick facial hair, thick hair under the lower lip, on the chest and under the armpits, the deepening of one’s voice and other similar characteristics are not signs of becoming b¡ligh, unless one develops certainty or satisfaction of becoming b¡ligh through these signs.
2306. A person who is insane does not have the right of discretion over his property or his own liability, nor can he exercise any financial discretion over himself.
As for a feeble-minded person (one who wastes his property on futile ventures), he too may does not have the right of discretion over his property or his own liability, by incurring a loan, becoming a guarantor or any such liabilities, without the permission or consent of his guardian. He may neither exercise any financial discretion over himself without the permission or consent of his guardian, such as offering himself for hire, or becoming a worker in a mu¤¡ribah, a muz¡ra‘ah or any similar contract.
A person who is bankrupt—defined as someone who has been interdicted by the ruling of a ¦¡kim al-shar’yy from disposing of his property—cannot dispose of his property without the permission or consent of his creditors.
2307. If a person suffers from fits of temporary insanity, any discretion he exercises over his property during moments of insanity is not valid.
2308. A person may use any amount of his wealth during a terminal illness for himself, his family, guests and anything that would not be considered extravagant. In fact, if he chooses to gift his wealth to someone, or sell his property for less than its value, his disposal of the property will be valid even if it constitutes more than one-third of his property, even if his heirs do not consent to it.
The Precepts of Deputyship
Deputyship is defined as the act of delegating a task to someone else, in matters wherein one possesses the right of discretion, and personal involvement is not a consequential in its validity, such as delegating the task of selling one’s house to another person, or marrying him to a woman.
Hence, since a feeble-minded person has no right of discretion over his own property, he may not deputize someone to sell it for him without the permission of his guardian. Similarly, a person who has been interdicted by a ¦¡kim al-shar’yy from disposing of his property owing to bankruptcy, may not deputize someone to dispose of his property without the permission or consent of his creditors.
2309. The act of deputyship does not require the utterance of a formal expression. Therefore if a person conveys to another that he has deputized him, and the other person also conveys that he has accepted it, such as a person giving his property to another to sell it for him, and the other also accepts possession of it, the deputyship will be in order.
2310.If a person deputizes someone who is in another city, and sends him a letter of deputyship, and the latter accepts, the deputyship will be in order even if the letter of deputyship reaches him after a while.
2311. The deputy and the one who appoints him, must both be sane, and must enter the relationship intentionally and out of their own volition, and should not be wrongfully compelled to do so.
Additionally, being b¡ligh is also a consequential condition in the one who appoints a deputy. However, a child who is not yet b¡ligh may appoint a deputy in matters which he is permitted to carry out himself, such as a ten year old child who has the right to make a will.
2312. A person may not appoint a deputy to perform a task that he is not capable of performing, or is prohibited by the shari’a from performing it. For example, since a person who is in the state of ihram in Hajj is not permitted to pronounce the formal expressions of a marriage contract, he cannot become a deputy to pronounce the formal expression for someone else.
2313. If a person deputizes someone to perform all of his tasks, it will be in order. However, if he appoints him to perform one of his tasks, but fails to specify that task, the deputyship will be void, unless he leaves it at the discretion of the deputy to specify the task. For example, he may say to him, “I appoint you as my deputy to sell my house or rent it out, which ever you of the two you wish to do.”
2314. If a person deposes his deputy, once the news reaches the deputy, he may not perform the task that he was deputized for. However, if he performs it before the news reaches him, it will be in order.
2315. The deputy may abdicate the deputyship, even if the one who appointed him is absent.
2316. A deputy may not appoint a deputy to perform the task that he was appointed to perform. However, if the one who appointed him permits him to appoint a deputy, he may act in the manner that he instructs him. Therefore, if he states, “Appoint a deputy for me,” he must appoint a deputy for him, and cannot appoint a deputy on his own behalf.
