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Orchard sharecropping is not permissible for an unspecified term. It is permissible only for a known, specified number of years, although lengthy terms are disliked. The years are reckoned by the harvest, not by lunar months; thus, orchard sharecropping cannot be contracted for a specified number of months.
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The Prophet’s statement (blessings and peace be upon him) to the Jews of Khaybar, “I shall allow you to remain as long as Allah allows you to remain,” provides no evidence that orchard sharecropping is permissible for an unspecified term. His statement was merely a promise to let them continue under a sharecropping arrangement, subject to its proper conditions, for as long as Allah allowed them to remain—that is, until Allah Most High commanded him to expel them and cease dealing with them there. He hoped for this command from Allah, but permission was not granted until his final illness. He therefore left instructions to that effect, and Umar expelled them after his death, because he had contracted with them for an unspecified period or for their lifetimes.
He made that statement only after concluding the sharecropping contract with them. It is like a man saying to another, after entering into a partnership or investment partnership with him, “You are my partner for as long as Allah keeps us alive.” He does not thereby intend to stipulate an unspecified term, but merely means, “I shall continue our investment partnership or partnership with you, subject to its proper conditions.” This is our interpretation of the hadith, and Allah knows best.
It has also been said that he made this statement to them and assessed their fruit yields because they were his slaves, whom Allah had granted him, together with their land, as spoils acquired without fighting. Uncertainty is permissible in dealings between a slave and his master to an extent that is not permissible between independent parties. The weakness of this interpretation has already been explained, so there is no point in discussing it again.
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Orchard sharecropping is permissible for any fruit-bearing plant before its produce becomes lawful to sell, whether the plant is perennial or not. For perennial plants, such as date palms, trees and olive trees, it is permissible whether or not their owner is unable to tend them. For non-perennial crops, such as cucumbers, aubergines, cumin, field crops and sugar cane, it is permissible only when their owner is unable to tend them. This is Mālik’s position. Ibn Nāfiʿ permits sharecropping for all these crops, whether or not their owner is unable to tend them. Al-Shāfiʿī permits it only for date palms and grapevines, concerning which there is a report