in them, or enters into lawful agreements with others to work them on behalf of the Muslim community, and he collects zakat from them in all cases. If they lie in privately owned land, they belong to the landowner, who may exercise the rights of an owner over them. If they lie in treaty land, the treaty-holders have the stronger claim to them, unless they embrace Islam, in which case the mines become their property. This is Sahnūn’s position, and a similar position is reported from Mālik in Ibn al-Mawwāz’s book.

The reasoning behind the first opinion is that the gold and silver in underground mines predate the landowners’ ownership. Ownership of the land therefore does not confer ownership of these deposits. This accords with the apparent meaning of Allah’s words:

“Indeed, the earth belongs to Allah; He grants it as an inheritance to whomever He wills of His servants.” [al-Aʿrāf: 128]

He did not say, “The earth belongs to Allah; He grants it and all it contains as an inheritance to whomever He wills of His servants.” On the basis of this apparent meaning, the gold and silver in underground mines must therefore be treated as spoils belonging to all Muslims, like property acquired without deploying horses or camels.

The reasoning behind the second opinion is that, since gold and silver form in the earth, they belong to the landowner, just like the grass and trees that grow there. The first opinion is more convincing, however, because grass and trees grow in the land after ownership has been established, unlike the gold and silver in mines.

As for agreements to work the mines, these should take the form of valid hire contracts. There are two opinions, however, on whether an agreement may provide for payment as a share of the yield. The first is that this is impermissible because it involves contractual uncertainty. This is Asbagh’s position in al-ʿUtbiyya, the view preferred by Muhammad ibn al-Mawwāz, and the position of most of Mālik’s followers. The second is that it is permissible. This is Ibn al-Qāsim’s position in the original al-Asadiyya and the view preferred by al-Fadl ibn Salama. He explained that, since mines may not be sold, agreements to work them in return for a share of their yield are permissible by analogy with produce-sharing irrigation contracts and profit-sharing partnerships.

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As for what is due on the material extracted from mines, there is considerable disagreement. The view adopted by