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Hadith 35204
Yahya related to me from Malik from Ibn Shihab from Said ibn al-
Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, said to the jews of Khaybar on the day of the conquest of
Khaybar, "I confirm you in it as long as Allah, the Mighty, the
Majestic, establishes you in it, provided that the fruits are divided
between us and you." Said continued, "The Messenger of Allah, may
Allah bless him and grant him peace, used to send Abdullah ibn Rawaha,
to assess the division of the fruit crop between him and them, and he
would say, 'If you wish, you can buy it back, and if you wish, it is
mine.' They would take it."
Muwatta Malik Book 33, Hadith 1
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Yahya said that Malik spoke about an investor who put qirad money
with an agent who bought goods with it, and the investor told him to
sell them. The agent said that he did not see any way to sell at that
time and they quarrelled about it. He said, "One does not look at the
statement of either of them. The people of experience and insight
concerning such goods are asked about these goods. If they can see
anyway of selling them they are sold for them. If they think it is
time to wait, they should wait."
Malik spoke about a man who
took qirad money from an investor and used it and when the investor
asked him for his money, he said that he had it in full. When he held
him to his settlement he admitted that "Such-and-such of it was lost
with me," and he named an amount of money. "I told you that so that
you would leave it with me." Malik said, "He does not benefit by
denying it after he had confirmed that he had it all . He is
answerable by his confession against himself unless he produces
evidence about the loss of that property which confirms his statement.
If he does not produce an acceptable reason he is answerable by his
confession, and his denial does not avail him."
Malik said,
"Similarly, had he said, 'I have had such-and-such a profit from the
capital,' and then the owner of the capital asked him to pay him the
principal and his profit, and he said that he had not had any profit
in it and had said that only so it might be left in his possession, it
does not benefit him. He is taken to account for what he affirmed
unless he brings acceptable proof of his word, so that the first
statement is not binding on him."
Malik spoke about an
investor who put qirad money with an agent who made a profit with it.
The agent said, "I took the qirad from you provided that I would have
two-thirds." The owner of the capital says, "I gave you a qirad
provided that you had a third." Malik said, "The word is the word of
the agent, and he must take an oath on that if what he says resembles
the known practice of qirad or is close to it. If he brings a matter
which is unacceptable and people do not make qirads like that, he is
not believed, and it is judged to be according to how a qirad like it
would normally be."
Malik spoke about a man who gave a man
one hundred dinars as a qirad. He bought goods with it and then went
to pay the one hundred dinars to the owner of the goods and found that
they had been stolen. The investor says, "Sell the goods. If there is
anything over, it is mine. If there is a loss, it is against you
because you lost it." The agent says, "Rather you must fulfil what the
seller is owed. I bought them with your capital which you gave me."
Malik said, "The agent is obliged to pay the price to the seller and
the investor is told, 'If you wish, pay the hundred dinars to the
agent and the goods are between you. The qirad is according to what
the first hundred was based on. If you wish, you are free of the
goods.' If the hundred dinars are paid to the agent, it is a qirad
according to the conditions of the first qirad. If he refuses, the
goods belong to the agent and he must pay their price."
Malik
spoke about two people in a qirad who settled up and the agent still
had some of the goods which he used - threadbare cloth or a waterskin
or the like of that. Malik said, "Any of that which is insignificant
is of no importance and belongs to the agent. I have not heard anyone
give a decision calling for the return of that. Anything which has a
price is returned. If it is something which has value like an animal,
camel, coarse cloth or the like of that which fetches a price, I think
that he should return what he has remaining of such things unless the
owner overlooks it." Muwatta Malik Book 32, Hadith 16
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a half or a third or a quarter or
whatever."
Malik said, "Share-cropping is also permitted in
any crop which emerges from the earth if it is a crop which is picked,
and its owner cannot water, work on it and tend it.
"Share-
cropping becomes reprehensible in anything in which share-cropping is
normally permitted if the fruit is sound and the good condition is
clear and it is halal to sell it. He must share-crop in it the next
year. If a man waters fruit whose good condition is clear and it is
halal to sell it, and he picks it for the owner, for a share of the
crop, it is not sharecropping. It is similar to him being paid in
dirhams and dinars. Share-cropping is what is between pruning the
palms and when the fruit becomes sound and its sale is halal."
Malik said, "If some one makes a share-cropping contract for fruit
trees before the condition becomes clear and its sale is halal, it is
share-cropping and is permitted . "
Malik said, "Uncultivated
land must not be involved in a share-cropping contract. That is
because it is halal for the owner to rent it for dinars and dirhams or
the equivalent for an accepted price."
Malik said, "As for a
man who gives his uncultivated earth for a third or a fourth of what
comes out of it, that is an uncertain transaction because crops may be
scant one time and plentiful another time. It may perish completely
and the owner of the land will have abandoned a set rent which would
have been good for him to rent the land for. He takes an uncertain
situation, and does not know whether or not it will be satisfactory.
This is disapproved. It is like a man having someone travel for him
for a set amount, and then saying, 'Shall I give you a tenth of the
profit of the journey as your wage?' This is not halal and must not be
done."
Malik summed up,"A man must not hire out himself or
his land or his ship unless for a set amount."
Malik said, "A
distinction is made between sharecropping in palms and in cultivated
land because the owner of the palms cannot sell the fruit until its
good condition is clear. The owner of the land can rent it when it is
uncultivated with nothing on it."
Malik said, "What is done
in our community about palms is that they can also be share-cropped
for three and four years, and less or more than that."
Malik
said, "That is what I have heard. Any fruit trees like that are in the
position of palms. Contracts for several years are permissible for the
sharecropper as they are permissible in the palms."
Malik
said about the owner, "He does not take anything additional from the
share-cropper in the way of gold or silver or crops which increases
him. That is not good. The share-cropper also must not take from the
owner of the garden anything additional which will increase him of
gold, silver, crops or anything. Increase beyond what is stipulated in
the contract is not good. It is also not good for the lender of a
qirad to be in this position. If such an increase does enter share-
cropping or quirad, it becomes by it hire. It is not good when hire
enters it. Hire must never occur in a situation which has uncertainty
in it."
Malik spoke about a man who gave land to another man
in a share-cropping contract in which there were palms, vines, or the
like of that of fruit trees and there was also uncultivated land in
it. He said, "If the uncultivated land is secondary to the fruit
trees, either in importance or in size of land, there is no harm in
share-cropping. That is if the palms take up two-thirds of the land or
more, and the uncultivated land is a third or less. This is because
when the land that the fruit trees take up is secondary to the
uncultivated land and the cultivated land in which the palms, vines or
the like is a third or less, and the uncultivated land is two-thirds
or more, it is permitted to rent the land and share-cropping in it is
haram."
"One of the practices of people is to give out
sharecropping contracts on property with fruit trees when there is
uncultivated land in it, and to rent land while there are fruit trees
on it, just as a Quran or sword which has some embellishment on it of
silver is sold for silver, or a necklace or ring which have stones and
gold in them are sold for dinars. These sales continue to be
permitted. People buy and sell by them. Nothing described or
instituted has come on that which if exceeded, makes it haram, and if
fallen below makes it halal. What is done in our community about that
is what people practise and permit among themselves. That is, if the
gold or silver is secondary to what it is incorporated in, it is
permitted to sell it. That is, if the value of the blade, the Quran,
or the stones is two-thirds or more, and the value of the decoration
is one-third or less." Muwatta Malik Book 33, Hadith 2