of these orchards, whether because of physical incapacity or lack of financial means. He then faces one of two choices: either he neglects these trees, so that they die and perish—resulting in waste and the loss of property—or he gives them to someone to tend for a wage. This may be burdensome for him. Although it is permissible, it may prove difficult for the owner of the property. Moreover, there may be people unemployed and in need of work. Thus, when one person possesses numerous orchards while workers need employment, it is in the public interest that we permit sharecropping of trees and say: entrust them to these workers in return for a share of the fruit.

It is now clear that musāqāh applies to trees, not to land or crops. Is it, in terms of its legal ruling, a permissible contract or a prohibited one?

The answer is that it is among the permissible contracts. The evidence is the absence of any evidence prohibiting it, for it is a transaction, and the basic principle regarding transactions is lawfulness and permissibility. If no evidence establishes prohibition, then it is lawful. Alternatively, we may say that the evidence consists of the absence of any prohibiting proof and the existence of proof permitting it: namely, the Prophet’s arrangement with the people of Khaybar, and the fact that public interest calls for it. It therefore accords with analogy, contrary to those who say that it runs against analogy because the worker’s stipulated share is unknown. These trees may yield an abundant crop, worth many times what the worker has spent on them; they may yield little fruit; or they may yield nothing at all, in which case the worker incurs a loss. The worker’s share is therefore unknown.

It may be said: this is exactly analogous to muḍārabah (profit-sharing investment), for in muḍārabah the worker takes the money, travels, exerts himself, and earns an immense profit, and in the end