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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 533

الترجمة · EN

Whether the portion is small or large; thus, if he stipulates for the worker a portion of one hundredth, and allocates a portion of it for himself and the remainder for the worker, it is permissible, provided he does not do so as a stratagem. Likewise, if he enters into the contract based on known fractions, such as fifty [parts], three eighths, or one sixth and one half of a seventh, and the like, it is permissible. However, if he enters into the contract based on an ambiguous portion, such as "a share," "a part," "a portion," "a lot," and the like, it is not permissible, because if it is not known, it is impossible to divide it between them. If he enters into a musaqat agreement for known sa's (units of measure), or if he adds specific sa's to the known portion, it is not permissible, because it may happen that the yield does not reach that amount, or that nothing else is produced, causing harm to the owner of the trees; or the yield might be abundant, causing harm to the worker. If he stipulates for him the fruit of specific palm trees, it is not permissible, because they might not bear fruit, in which case all the fruit would belong to the owner of the wealth; or they might bear fruit while others do not, in which case all the fruit would belong to the worker. For this very reason, the Prophet (peace and blessings of Allah be upon him) forbade muzara'a (sharecropping) in which one designates a specific area for the owner of the land and a specific area for the worker. Rafi' said: "We used to lease land on the condition that we have this [portion] and they have that [portion]. Sometimes this one would yield and that one would not, so he forbade us from doing that. As for gold and silver, he did not forbid us." This is agreed upon. Therefore, whenever any of these corrupt conditions are stipulated, the musaqat is invalid, and all the fruit belongs to the owner of the wealth, because it is the growth of his property. The worker is entitled to the equivalent wage (ajr al-mithl), just as in a corrupt mudaraba. Second: that the condition is for the worker, because he is the one who takes [his share] based on the condition, so the condition is intended for his sake, whereas the owner of the wealth takes [his share] by virtue of his property, not by virtue of the condition. Thus, if he says: "I have entered into a musaqat contract with you on the condition that you have one third of the fruit," it is valid, and the remainder belongs to the owner of the wealth. If he says: "It is incumbent upon me that I have one third of the fruit," Ibn Hamid said: "It is valid, and the remainder belongs to the worker." It was also said: "It is not valid." We have previously mentioned the reasoning for this in the section on mudaraba. If they disagree as to whom the stipulated portion belongs, it belongs to the worker, because the condition is intended for his sake, as we have mentioned.

الحواشي

(17) In [M]: "aw rubbama" (or perhaps). (18) In [B]: "al-mal" (the wealth). (19) Its derivation was mentioned previously on page 528. (20) Omitted from [B]. (21) In the original: "lil-'amil" (for the worker).

السابقمجلد 7 · صفحة 533التالي
السابق7·533التالي