his share of the fruit to his companion’s home. This opinion is far-fetched. It accords with Ibn al-Mājishūn’s principle, his report from Mālik, and Ashhab’s position concerning an invalid profit-sharing investment contract.

The third opinion is that, in some cases, the worker receives the customary wage for comparable work, and in others, the customary share under a comparable sharecropping contract. This is Ibn al-Qāsim’s position. It rests on juristic preference rather than analogy, much like his position concerning profit-sharing investment contracts. His governing principle is that if, through an additional payment stipulated by one party upon the other beyond the sharecropping arrangement itself, the parties turn the arrangement into an invalid hiring contract or a sale of fruit before it begins to ripen, the worker receives the customary wage for comparable work, provided the irregularity is not discovered until work has been performed and it is too late to annul the contract.

An example is engaging someone to tend an orchard on condition that one party give the other additional dinars, dirhams, merchandise, or something similar. If the orchard owner engages the worker on condition that he give him additional dinars, dirhams, or merchandise, he has hired him to work in his orchard in return for the money or merchandise provided together with a share of its fruit. The worker must therefore receive the customary wage for comparable work. If, on the other hand, he engages him on condition that the worker give him additional dinars, dirhams, or merchandise, the worker has purchased the fruit from him in return for the money or merchandise provided together with his labour in the orchard. Here too, the worker must receive the customary wage for comparable work.

If, however, the parties have not departed from the rules governing sharecropping, but have merely concluded a contract involving uncertainty—for example, assigning the worker one-third of the yield of one orchard and one-half of another, or something similar—or if one party stipulates that the other perform orchard work that is not incumbent upon him and that leaves no permanent benefit for the orchard owner, then the worker receives the customary share under a comparable sharecropping contract.

This general principle covers many cases set out in detail by Ibn Habīb and others. Ibn al-Qāsim is recorded as awarding the customary share under a comparable sharecropping contract in four cases. Two are in al-Mudawwana: the first is where someone engages a worker to tend an orchard containing fruit that has become fit to eat. The second is where the worker stipulates that the orchard owner work alongside him. The other two are in