is equivalent to a lease. Umar did not fix a term for it only because of the general public interest involved; land tax is the rent payable for the land. This, then, is precisely the leasing of land planted with trees, a practice upon which Umar and the Muslims agreed in his time and thereafter. Hence Abū Ubayd expressed astonishment at this in Kitāb al-Amwāl, since he believed that this [arrangement] conflicted with what he knew of the jurists’ doctrines.

Ibn Aqīl’s argument is that leasing land is permissible and genuinely needed. When land contains trees, however, it cannot be leased without the trees also being included in the lease; and whatever is necessary for something permissible to be carried out is itself permissible. The tenant will not water the trees gratuitously, and the owner may not enter into an orchard-sharing arrangement for them.

This parallels the position of Mālik and al-Shāfiī. Strict analogy, in their view, dictated that sharecropping was impermissible. Yet when a worker entered into an orchard-sharing contract for trees interspersed with open arable ground, they allowed sharecropping on that open ground as incidental to the orchard-sharing contract. Mālik permits this when the open ground makes up less than one-third, just as he held concerning trees sold as incidental to the land. Al-Shāfiī likewise permits it when the open ground is limited and the date palms cannot be irrigated without irrigating that ground. If the open ground is extensive and the date palms are few, his followers hold two positions.

This applies when the two arrangements are combined in a single contract and the same stipulated share—such as one-third or one-quarter—is assigned to each. If unequal shares are stipulated for the two, his followers hold two positions. Likewise, if they are separated into two contracts and the orchard-sharing contract is concluded first, there are two positions. If the sharecropping contract is concluded first, however, it is invalid according to a single position.

They thus permitted sharecropping—which is otherwise impermissible according to both of them—as incidental to an orchard-sharing contract. Likewise, the trees may be included in a lease as incidental to the lease of the land.