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Chapter eighteen » Those who are Prohibited from having Disposal over their Property → ← Chapter sixteen » Sharecropping (Muzāraʿah)

Chapter seventeen » Tree Tending Contract (Musāqāh) and Tree Planting Contract (Mughārasah)

Ruling 2256. If a person forms an agreement with someone to, for example, place at his disposal some fruit trees – the fruits of which either belong to him or are under his discretion – for a specific period of time so that he may tend to and water them, and in return take an agreed portion of the fruits for himself, then such a transaction (muʿāmalah) is called a ‘tree tending contract’.

Ruling 2257. A tree tending transaction with trees that do not yield fruit but have, for example, leaves and flowers of significant value – such as the henna tree whose leaves are utilised – is valid (ṣaḥīḥ).

Ruling 2258. In a tree tending contract, it is not necessary to say a particular formula (ṣīghah) [in order for it to be valid]. Rather, if the owner of the trees leaves them with the intention (qaṣd) of a tree tending contract and someone who does such work starts doing the work, the transaction is valid.

Ruling 2259. Both the owner and the person who takes on the responsibility of tending to the trees must be of the age of legal responsibility (bāligh), sane (ʿāqil), and no one must have compelled them [to enter into the tree tending contract]. Furthermore, they must not be foolish with finances (safīh) – i.e. they must not spend their wealth in futile ways – and the owner must not have been proclaimed bankrupt (mufallas). However, if the gardener has been proclaimed bankrupt, there is no problem as long as the tree tending contract does not require him to have disposal over that part of his wealth over which he has been prohibited to have disposal.

Ruling 2260. The period of the tree tending contract must be known, and the length of the period must be such that it is possible to harvest the crop in that time. If the start of the period is specified and the end of the period is fixed as the time of harvest, it is valid.

Ruling 2261. The share of each party must be a half, a third, or suchlike, of the produce. If they agree that, for example, 10 kilograms will belong to the owner and the rest will belong to the person who does the work, the transaction is not valid.

Ruling 2262. It is not necessary that the tree tending contract be concluded before the produce becomes apparent. Rather, if it is concluded after it becomes apparent, in the event that some necessary task remains to be performed in order to increase the produce or to make it better or to safeguard it from disease, the transaction is valid. However, if no such task remains to be performed, then even if there remains some necessary task to be performed for tending to the trees or for picking the fruit or for looking after it, the validity of such a transaction is problematic (maḥall al-ishkāl) [i.e. based on obligatory precaution (al-iḥtiyāṭ al-wājib), the transaction is not valid].(1)

Ruling 2263. Based on the more apparent (aẓhar)(2) juristic opinion, a tree tending transaction for honeydew melon and cucumber plants and suchlike is valid.

Ruling 2264. If a tree uses rainwater or moisture from the earth and does not require any extra irrigation, then as long as it requires other tasks – such as those mentioned in Ruling 2262 – a tree tending contract with respect to it is valid.

Ruling 2265. The two parties to a tree tending contract can annul it with the consent of the other party. If they stipulate a condition in the tree tending contract that both or one of them reserves the right to annul the agreement, there is no problem in annulling it in accordance with their agreement. If they stipulate a particular condition in the tree tending contract and the condition is not fulfilled, the party in whose benefit the condition was made can annul the agreement.

Ruling 2266. If the owner dies, the tree tending contract is not nullified. Instead, his heirs will take his place.

Ruling 2267. If the person who has been tasked with tending to the trees dies, in the event that there is no restriction or condition in the contract to the effect that the person himself must tend to the trees, his heirs will take his place. If the heirs do not perform the task themselves nor hire someone to do it, a fully qualified jurist (al-ḥākim al-sharʿī) will hire someone using the deceased’s estate and will divide the produce between the heirs and the owner. And if there is a restriction in the contract that the person himself must tend to the trees, the contract is nullified upon his death.

Ruling 2268. If a condition is stipulated that the entire produce belongs to the owner, the tree tending contract is invalid (bāṭil) but the produce will nevertheless belong to the owner. Furthermore, the person who does the work on the trees cannot claim any wages. However, if the tree tending contract is invalidated due to another reason, the owner must pay wages at the standard rate to the person who tended to the trees by watering them and performing other tasks. And in the event that the normal wage is more than the amount in the contract and the owner is aware of this, it is not necessary for him to pay the extra amount.

Ruling 2269. A tree planting contract is one in which a person places some land at the disposal of another person so that he may plant trees on it and the proceeds be shared by both of them. This is a valid transaction, although the recommended precaution is to refrain from it. In fact, the same result can be achieved through a transaction that is valid without problem; for example, the two parties can arrive at a settlement (ṣulḥ) and reach a compromise to the same effect; or, they can be each other’s partner (sharīk) with respect to the saplings and thereafter the gardener can hire (ijārah) himself to the owner of the land for planting, tending to, and irrigating them for a specified period of time in return for half of the proceeds resulting from the land during that period.

(1) As mentioned in Ruling 6, the term ‘problematic’ (maḥall al-ishkāl) amounts to saying that the ruling is based on obligatory precaution.

(2) For practical purposes in jurisprudential rulings, an opinion that is termed ‘more apparent’ equates to a fatwa.
Chapter eighteen » Those who are Prohibited from having Disposal over their Property → ← Chapter sixteen » Sharecropping (Muzāraʿah)
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