886 - Issue: Abu al-Qasim said: (Musaqat [sharecropping of trees/irrigating for a share] is permissible for date palms, trees, and grapevines for a known portion [of the produce] to be assigned to the worker from the fruit).

The collective meaning of this is that musaqat is permissible for all fruit-bearing trees. This is the opinion of the Rightly Guided Caliphs, may Allah be pleased with them. This is also the view of Sa'id ibn al-Musayyib, Salim (1), Malik, al-Thawri, al-Awza'i, Abu Yusuf, Muhammad, Ishaq, and Abu Thawr. Dawud said: It is not permissible except for date palms because the report [hadith] only came regarding them in this regard. Al-Shafi'i said: It is not permissible except for date palms and grapevines because zakat is obligatory on their fruit (2), while there are two opinions regarding other trees. One of them is that it is not permissible because zakat is not obligatory on their yield, thus they resemble what has no fruit. Abu Hanifah and Zufar said: It is not permissible under any circumstances, because it is [essentially] hiring [a worker] for a fruit that has not yet been created, or hiring for an unknown fruit, similar to hiring oneself for the fruit of trees other than those he is irrigating. Our evidence is the Sunnah and the consensus, and it is not permissible to rely upon what contradicts them. Their statement that it is a 'hiring' is incorrect; it is merely a contract for labor on property in exchange for a portion of its yield, so it is like mudaraba (partnership in capital). Their objection is refuted by the case of mudaraba, for one works on capital in exchange for its yield, which is non-existent and unknown, yet it has been permitted by consensus, and this is of the same meaning. Furthermore, the Lawgiver has permitted contracts in hiring for non-existent benefits due to necessity, so why would it not be permitted for non-existent fruit due to necessity? Moreover, analogy (qiyas) is only for appending a case about which nothing was said to one that was explicitly addressed or agreed upon. As for invalidating a text and violating a consensus through an analogy derived from another text, there is no path to that. As for restricting this to date palms, or to them and grapevines, it contradicts the general statement: The Messenger of Allah (peace and blessings of Allah be upon him) dealt with the people of Khaybar for a portion of what is produced...