The majority ground their position on the element of uncertainty (gharar) they see in an open-ended term, analogising it to a lease.
The Ẓāhirīs, by contrast, rely on the mursal report transmitted by Mālik in which the Messenger of God ﷺ said, “I confirm you in what God has confirmed for you.”
Mālik regarded a musāqāh that extends for many years as reprehensible. In his view a “year” in such contracts ends with the cutting of the fruit, not with the lunar months.
Is a specific verbal formula required?
The jurists differ.
– Ibn al-Qāsim holds—and al-Shāfiʿī concurs—that the contract is valid only if the term musāqāh itself is used; wording of ijārah will not suffice.
– Others allow it to be concluded with the wording of ijārah, which is the logical extension of Sahnūn’s view.
Rulings concerning validity
In Mālik’s doctrine, musāqāh is a binding contract by virtue of the spoken word, not by mere performance, unlike qirāḍ, which for him is concluded by action, not speech. The contract is inheritable: if the worker dies, his heirs must either do the work themselves—provided they are trustworthy—or appoint a trustworthy substitute; the expense is met from the estate if they refuse.
Al-Shāfiʿī says: if the deceased leaves no estate, the orchard owner must pay the heirs wages for the labour already done and the contract is void. If he leaves an estate, the musāqāh remains binding. He further states, without qualification, that the contract is annulled when the worker becomes incapable.
Mālik, however, rules that if the worker becomes incapable after the fruit may lawfully be sold, he may not assign the contract to someone else; instead he must hire labour, the cost to be taken from his share of the crop if he possesses anything.
Should the worker prove to be a thief or an oppressor, Mālik does not consider the contract dissolved on that account. A report from al-Shāfiʿī, on the other hand, obliges him to appoint another person to do the work; and al-Shāfiʿī adds that if the worker absconds before completion, the judge is to hire someone at the worker’s expense to finish the task.
Mālik permits each party to stipulate that the other pay the zakāh due—unlike in qirāḍ—and he counts their nisāb as that of a single person, contrary to his view in business partnerships.
If the owner and the worker dispute the share of fruit covered by the contract, Mālik says the worker’s word prevails—if plausible—upon his oath, because he is the party entrusted; his principle is that the oath rests on the claimant with the stronger presumption. Al-Shāfiʿī likens the case to a sale: the two parties swear, the contract is rescinded, and the worker receives wages.
There are many subsidiary questions in this chapter, but the points on which juristic disagreement is best-known are those just mentioned.
Rulings on invalid musāqāh
All agree that if a musāqāh is concluded in a form not sanctioned by the Sharīʿah, it is dissolved so long as work has not yet begun. Once labour has been performed, they differ:
– One view—reflecting the analogy of al-Shāfiʿī and one report from Mālik—holds that every kind of invalid musāqāh reverts to a market-rate lease (ijārat al-mithl).
– Another view, attributed to Ibn al-Mājishūn and reported from Mālik, says that it always reverts to an equivalent musāqāh.
– Ibn al-Qāsim distinguishes: in some cases it reverts to an equivalent musāqāh, in others to a market-rate lease.