In musāqāh the ruling is that the produce is apportioned on the basis of kharṣ—visual estimation of the crop. A report from ʿAttāb ibn Asīd establishes judgment by kharṣ for date-palms and grapevines, and although that report concerns zakāh, it appears that he applied the same principle to musāqāh by analogy.
The ḥadīth transmitted from ʿAttāb ibn Asīd states:
“The Messenger of Allah (peace and blessings be upon him) sent him out and ordered him to estimate the grapes, and that their zakāh be paid in raisins, just as the zakāh of date-palms is paid in dried dates.”
Dāwūd [al-Ẓāhirī] dismissed this ḥadīth on the grounds that it is mursal and comes only through ʿAbd al-Raḥmān ibn Isḥāq, who is not reliable.
The jurists also differed when date-palms are accompanied by bare land—or, more generally, when land accompanies the fruit. Is it permissible to include that land in the musāqāh for a share of the dates alone, or for a share of both the dates and whatever else the land produces? One group allowed it: Abū Ḥanīfah’s two associates, al-Layth, Aḥmad, al-Thawrī, Ibn Abī Laylā, and others.
Al-Shāfiʿī and the Ẓāhirīs held that musāqāh is valid only with respect to the fruit itself.
Mālik said: If the land is merely ancillary to the fruit, and the fruit constitutes the bulk of the yield, there is no harm in including the land in the musāqāh, whether or not the owner stipulates a separate share from it. The ceiling for that share is one-third or less—that is, the rental equivalent of the land may be up to one-third of the fruit. He did not allow the owner to stipulate that the vacant land be cultivated exclusively for himself, for that would confer an additional benefit upon him.
Al-Shāfiʿī deemed such a stipulation permissible, and those who permit musāqāh over both—the land for a portion of its yield—cite the previously mentioned ḥadīth of Ibn ʿUmar as proof. Those who prohibit it rely on the report of Rāfiʿ ibn Khadīj that forbids leasing land for a share of its produce; this has already been discussed.
Aḥmad ibn Ḥanbal remarked, “The wordings of the narrations from Rāfiʿ are inconsistent, whereas the ḥadīth of Ibn ʿUmar is sounder.” As for Mālik’s fixing the limit at one-third, it is weak; it is a preference (istihsān) unsupported by the legal principles, for those principles dictate that, within the same genus, permissibility should not vary merely with quantity.
They likewise disagreed about musāqāh in vegetables. Mālik, al-Shāfiʿī and his followers, and Muḥammad ibn al-Ḥasan allowed it. Al-Layth, however, ruled it impermissible. The majority argued that, even though the worker need not irrigate vegetables, other tasks remain, such as pollination and the like. Al-Layth considered irrigation to be the defining act that validates a musāqāh contract, and it is because of irrigation that the concession exists.
The second pillar
With regard to the pillar that concerns labor, the scholars are unanimously agreed that the worker’s obligations are irrigation and pollination.