As for Abū Ḥanīfah—and those who side with him—their chief argument is that this report clashes with established legal principles. They add that the ruling was issued with respect to Jews, and it is conceivable that the Prophet (peace and blessings be upon him) left them either in the status of slaves or as protected non-Muslims (dhimmīs). Yet even if we assume they were dhimmīs, the ruling would still run counter to first principles, for it amounts to selling something that does not yet exist. In addition, they say, it falls under muzābanah—the forbidden exchange of dates for dates with disparity—because dividing the crop on the basis of estimation (kharṣ) is effectively the sale of an estimated, unharvested yield.
They bolster the claim that the report contravenes foundational rules with the ḥadīth of ʿAbd Allāh ibn Rawāḥah, who at the time of estimation would say to them:
“If you wish, you may take it, provided you guarantee the Muslims’ share; and if you wish, it is mine, and I will guarantee your share.”
Such an arrangement is unanimously unlawful.
They may also contend that the prohibition of mukhābarah refers precisely to the practice that took place at Khaybar. The majority, however, understand mukhābarah to mean leasing land in return for a portion of its produce.
They further argue that the ḥadīth is either abrogated or confined to the Jews, citing the report of Rāfiʿ and others that forbid renting land for what it yields. Musāqāh presupposes the permissibility of such a lease, yet the prohibition appears—though in restricted form—in certain narrations of the musāqāh traditions. Because of this, neither Mālik nor al-Shāfiʿī accepted the additional wording, “The Messenger of Allah (peace and blessings be upon him) entered into a musāqāh with them for one half of what the land and the trees produced.” This addition is sound, and the Ẓāhirīs upheld it.
Concerning the validity of musāqāh, the discussion must address its pillars, the time in which it is concluded, and the conditions attached to those pillars.
Musāqāh has four pillars:
- The specific subject-matter to which it applies.
- The share stipulated in the contract.
- The nature of the work for which the contract is concluded.
- The period within which the contract is valid and operative.
The first pillar: the subject-matter of musāqāh.
Scholars differ on this point.
• Dāwūd [al-Ẓāhirī] holds that musāqāh is valid only in date-palms.
• Al-Shāfiʿī allows it in date-palms and grapevines only.
• Mālik permits it for every perennial tree—such as pomegranates, figs, and olives—without any special necessity. He also allows it, when the owner is unable to cultivate, for non-perennial crops like cucurbits and melons, as well as for grain. According to all jurists it is impermissible in vegetables, except Ibn Dīnār, who allowed it provided the vegetables had sprouted before they could be exploited.
Those who restrict it to date-palms argue that the ruling is a concession (rukhṣah) and therefore must not be extended beyond the context specified in the Sunnah. Mālik, by contrast, regards it as a concession whose underlying rationale is general, and thus it should be extended to analogous cases. Some jurists allow analogy (qiyās) with concessions when broader causes are evident; others reject analogy in concessions altogether. Dāwūd rejects analogy in its entirety, so his ruling on musāqāh follows consistently from his overall methodology.
As for al-Shāfiʿī, he permitted it in the case of vines because the ruling