The third category is a tree-planting contract in return for a share of the land. Scholars have permitted this by analogy with the tree-tending contracts for a share of the fruit permitted by the Sunnah. It is neither purely a contract of hire nor purely a reward-based arrangement. Rather, it is an established practice in its own right and an independent legal institution, sharing features of both. It resembles a contract of hire in becoming binding upon conclusion, and a reward-based arrangement in that the planter is entitled to nothing until the trees have become established and reached the stipulated stage. If the planting fails before then, he receives nothing, nor is he entitled to undertake the planting again. It has also been held that this arrangement is impermissible. This is Ibn al-Qāsim’s position in the section entitled “Manumission” in ‘Īsā’s transmitted reports in the Book of Tree-Planting Contracts: a tree-planting contract in return for a share of the land is permissible only as a reward-based arrangement, provided that it is not binding upon the planter and that he may leave and abandon the work if he wishes. According to this view, tree-planting arrangements fall into only two categories: reward-based arrangements and contracts of hire, whether or not the planter receives a share of the land.
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There is disagreement concerning cases in which a small proportion of the trees becomes established and reaches the stipulated stage while the rest fails, or a small proportion fails while the rest becomes established. One view is that the smaller portion follows the ruling of the larger, unless the portion that survives or fails is substantial and significant. In that case, even if it is the smaller portion, it is not treated as incidental: the planter’s entitlement is established in respect of what survives and lapses in respect of what fails. This is the narration of Husayn ibn ‘Āsim, and it accords with the well-known position of the school, according to which a tree-planting contract in return for a share of the land is permissible as an arrangement binding upon both parties. Another view is that his entitlement is established in respect of whatever reaches the stipulated stage and lapses in respect of whatever does not, whether little or much, incidental or otherwise. This accords with the view that a tree-planting contract in return for a share of the land is permissible only as a reward-based arrangement.
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A tree-planting contract in return for a share of the land is permissible only under conditions laid down by the people of