Accordingly, some jurists held that musāqāh (orchard-sharecropping) and muzāraa (crop-sharing) are prohibited and invalid, on the grounds that they are forms of hire, since each entails labor in return for compensation. In a contract of hire, the wage must be known, because it is analogous to a sale price. They also relied on Ahmad’s narration from Abū Saīd that the Prophet—peace and blessings be upon him—“forbade hiring a worker before his wage had been made known to him, as well as fraudulent bidding, touch-based sales, and sales determined by throwing a pebble.” Moreover, the compensation in orchard-sharecropping and crop-sharing is unknown: the crops and fruit may be produced in small or large quantities, may be deficient in quality, or may not be produced at all. If Allah withheld the produce, the worker’s labor would have been taken without compensation. This is the position of Abū Hanīfa, and no one took a stricter position than he did in declaring this prohibited.

As for Mālik and al-Shāfiī, analogical reasoning, in their view, leads to Abū Hanīfa’s conclusion by classifying these arrangements as prohibited contractual uncertainty. Nevertheless, they permitted those forms for which there was a need.

Mālik—and al-Shāfiī in his earlier position—therefore permitted orchard-sharecropping without restriction. This was because leasing trees is impermissible, as it constitutes selling their fruit before signs of its ripeness appear, while the owner may be unable to water and tend his trees and thus be compelled to enter into an orchard-sharecropping arrangement. Crop-sharing is different, because the owner can lease the land for a stipulated rent, thereby dispensing with the need for a subsidiary crop-sharing arrangement on it. They nevertheless permitted crop-sharing when it was included as an ancillary part of orchard-sharecropping. Thus, if there was a small area of open ground among the trees, crop-sharing on it was permissible as an adjunct to the orchard-sharecropping arrangement.

Mālik’s position is that, under an unqualified contract, the crop grown on that open ground belongs to the worker. If the parties stipulate that it is to be shared between them, that is permissible. This applies provided the open ground does not exceed one-third.

Al-Shāfiī does not assign its crop to the worker. Rather, he holds that if the trees cannot be watered without also watering that ground, crop-sharing on it is permissible. His followers have two views concerning open ground that is extensive and exceeds the area occupied by the trees.