Section
For a musāqah to be valid the produce must be confined to the two contracting parties, they must actually share in it, and the respective portions must be expressly fixed as fractions, just as in a qirād partnership. The preponderant view is that a musāqah may be concluded after the fruit has set but before it begins to ripen.
If the agreement is made over saplings that are still to be planted on the understanding that the resulting trees will belong to them both, it is impermissible. When the trees already exist and a share of the fruit is assigned to the worker for his labour, the contract is sound provided they specify a term during which the trees normally bear fruit; otherwise it is not. A secondary opinion, however, holds that if the two possibilities are equally balanced the contract is valid.
One partner in the trees may engage his co-owner in a musāqah so long as he grants him more than his present share.
Further conditions are required:
• Nothing outside the customary scope of musāqah tasks may be imposed on the worker.
• He must carry out the work himself and exercise exclusive control of the orchard.
• The duration must be fixed—one year or more—and, on the sounder view, may not be expressed as “until the fruit is ready for picking.”
The contract formula may be, “I engage you in musāqah for these palms for such-and-such,” or, “I hand them over to you so that you may maintain them.” Acceptance is required, but detailing every task is unnecessary; any unqualified wording is interpreted according to prevailing custom.
The worker bears the recurring annual tasks needed to preserve and increase the yield—watering, clearing the canal, repairing the water basins, pollination, removing harmful weeds and shoots, and erecting the customary trellises—as well as, on the stronger opinion, guarding, harvesting, and drying the fruit. Work intended to safeguard the trees themselves that does not recur each year, such as building boundary walls or digging a new canal, is the owner’s responsibility.
The contract is binding. If the worker absconds before completion and the owner voluntarily finishes the work, the worker’s right to his agreed share remains. Otherwise the judge hires someone to complete it at the worker’s expense; should the owner be unable to reach a judge, he must take witnesses to his expenditure if he wishes to be reimbursed later.
If the worker dies leaving an estate, the heir completes the work, either personally or out of the estate. If the worker’s dishonesty is established, a supervisor is appointed; if that fails to protect the owner’s rights, someone is hired at the worker’s expense. Should the crop ultimately prove to belong to another, the worker is entitled to the market wage for his labour, payable by the orchard owner.