The Third Pillar

All the jurists agree that a musāqāh contract is valid with whatever proportion of the crop the two parties settle upon. Mālik even allows the entire yield to go to the worker, just as he permits in qirāḍ. Some have replied that such an arrangement is really a gratuitous gift, not a musāqāh; others declare it outright invalid.

They are also unanimous that the contract may not include any extra benefit—such as obliging either party to pay additional dirhams or dinars, or anything outside the scope of musāqāh—except for something trifling, according to Mālik, like mending the fence or repairing the ẓafīrah (the water-collection basin).

In Mālik’s view it is impermissible to contract over two orchards with two different profit-shares—one orchard on one ratio, the other on another. He bases this on the Prophet’s ﷺ practice at Khaybar, where he contracted over several orchards for a single uniform share, though the point remains disputed.

The scholars have differed over whether the fruit must be divided between owner and worker by actual measurement (kayl)—and, by extension, in all partnerships—or whether division by estimation (kharṣ) is acceptable. The majority insist on measurement and rule out estimation, while another group permits estimation. Within the Mālikī school itself opinions and transmitted reports diverge: some allow it; some prohibit it for riba-liable fruits yet allow it for other produce; others permit it without restriction whenever the partners’ circumstances differ.

The majority argue that estimation is tainted by the corruption found in muzābanah, resembling the sale of fresh dates for dried dates or the exchange of food for food on deferred terms. Those who permit estimation liken it to the ‘ariyyah transaction and to the estimation used in assessing zakāh, though this analogy is weak. Their strongest proof is the estimation reportedly employed in the musāqāh of Khaybar, related in the mursal reports of Saʿīd ibn al-Musayyib and ʿAṭāʾ ibn Yasār.

The Fourth Pillar

Stipulating time in musāqāh is of two kinds: (1) a time-frame that governs when the contract may be concluded, and (2) a time-frame that is essential to the contract’s validity by defining its duration.

1. The time that determines permissibility of concluding the contract
   The jurists agree that a musāqāh may be concluded before the signs of ripeness (budūʾ al-ṣalāḥ) appear. They differ about its permissibility afterward. The majority who endorse musāqāh say it is invalid once ripeness begins. Sahnūn, one of Mālik’s disciples, sees no harm in it. Al-Shāfiʿī has two reported views—one disallowing it, another permitting it—and it is also said that he forbids it once the fruit has actually formed.

   The majority reason that, after ripeness appears, no significant labor remains and there is no need for musāqāh, since the fruit can simply be sold; any agreement at that point would amount to a lease. Those who allow it argue that if the contract is valid before the fruit even exists, it is even more so after ripeness has begun. On this basis they do not allow musāqāh for vegetables, because—according to the majority—vegetables can already be sold directly.

2. The time that fixes the duration of the contract
   The majority hold that the term may not be left unknown—that is, the period must be specified. A group, including the Ẓāhirīs, permit leaving the duration open-ended.