Irrigation Partnership (Musaqat) - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) Appendix (B) The Shari’ah Basis for the Standard Permissibility of Musaqat and Its Rationale ■ The basis for the permissibility of Musaqat is the Sunnah, Ijma’ and common sense. From the Sunnah, there is the Hadith narrated by Ibn Umar that the Prophet Muhammad (peace be upon him) gave the land of Khaybar to its inhabitants to work on and cultivate in return for half of its yield (fruits and plants).(2) Based on Ijma’, the companions (may Allah be pleased with them) practiced Musaqat in Khaybar until Umar (may Allah be pleased with him) evacuated them therefrom, without any objection from whosoever. Ijma’ or consensus (by Four Schools of Fiqh) as to permissibility of Musaqat was cited by prominent scholars Al-Bisyawi, Ibn Hazm and Al’Utabi, Muwaffaq Al-Din Ibn Qudamah, Shams Al-Din Ibn Qudamah and Al-Shamakhi, the author of “Ghayat Al-Bayan” Al-Bayan”,, Ibn Muflih and Al(3) Buhuti. On the basis of common sense, Musaqat fulfils the interest of both parties, and is associated with no harm. Its permissibility may also be deduced in analogy with Mudarabah. ■ The basis for bindingness of Musaqat once it has been entered into or undertaken is the overarching Quranic Verse: {“O you who believe! Fulfil (your) obligations”}. obligations”} (4) (2) Related by Al-Bukhari, Chapter on Muzara’ah for half of the produce, and so on. Also, related by Muslim, Chapter on Musaqat for part of the fruits and plants. (3) See “Al-Mukhtasar” “Al-Mukhtasar”,, Al-Bisyawi, (P. 291); “Al-Jami’” “Al-Jami’”,, Abu Al-Hasan, [49: 4]; “AlMuhalla”,, [8/230]; “Al-Diya” Muhalla” “Al-Diya”,, [18: 245]; “Al-Mughni” “Al-Mughni”,, [5: 549-552]; “Al-Sharh Al-Kabir” Al-Kabir”,, [5: 557]; “Al-Idah” [6: 233]; “Al-Bahr Al-Ra`iq” [8: 64]; “Al-Mubdi’ “Al-Mubdi’”” [5: 46]; and “Kashf Al-Qina’” [3: 533]. (4) [Al-Ma`idah (The Table): 1]. 1189
2. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) Elements of Musaqat Contract ■ The basis for stipulating legal competency in a Musaqat contract is the Prophet’s Hadith: “The Pen has been lifted from writing the deeds of three: The one who is asleep until one wakes up, the child until he/she becomes pubescent and the insane until he/she becomes sane” sane”.(5) ■ The basis for the necessity for identification of trees (subject matter of the contract), and the stipulation of the trees being arable (productive) in usual circumstances is avoidance of Gharar. Trees that are not arable (productive) do not fit the purpose of Musaqat. ■ The basis for the stipulation of irrigation and cultivation of trees is that work is one of the requisite elements of the contract (Arkan), and Musaqat is invalid in the absence of one of its requisite elements. Prerequisites of Validity ■ The basis for specification of a predetermined, common share for both parties to the contract is the Hadith narrated by Ibn Omar that the Prophet (peace be upon him) gave the land of Khaybar to its inhabitants to work on and cultivate in return for half of its yield (fruits and plants). The specification of lump-sum compensation will divert the contract away from the features of Musaqat. The determination of a known compensation is meant to avert impermissible obscurity (Jahalah). ■ The basis for the confinement of work to fruit growing and tree cultivation is that this what entails work in Musaqat; if another form of work is stipulated in the contract, such a stipulation shall contradict the very nature of the contract, as it only fulfils the interests of one party at the expense of the other. ■ The basis for making the term of Musaqat equal to the period ending with the time the produce materializes or over a term enough for the produce to materialize is the rules of justice in Shari’ah so that the trees owner does not exclusively benefit from the produce while the worker receives nothing. The produce is what the contract is meant to achieve after all, and therefore it is impermissible that the worker is devoid of his/ her rights by shortening the term of Musaqat. (5) Related by Abu Dawud in the Chapter on an insane stealing or becoming liable to punishment. 1190
3. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) Obligations of the Worker (Irrigator) ■ The basis for the worker’s obligation to undertake normal care of the trees and for the produce of fruits is that the people of Khaybar were entrusted with the work, without anyone else being sent by the Prophet (peace be upon him) to take up some of Musaqat works. ■ The basis for the prohibition of sub-contracting in Musaqat without prior permission is that the trees are not the property of the worker (irrigator), nor the worker is authorized by the owner of trees to do so. And notwithstanding, the owner may not accept that the worker (irrigator) assigns the Musaqat contract to a third-party irrigator. ■ The basis for the permissibility of using the services of hired hands or the like by the worker (irrigator) is the general condition cited by the Prophet (peace be upon him) to the people of Khaybar that “they may seek the services of hired hands, but only at their own expense”. However, the worker’s responsibility/liability shall not cease to exist.(6) ■ The basis for the Musaqat worker acting in a fiduciary capacity (rather than a position of liability) is that he/she is an agent on behalf of the owner in preservation and care of trees and fruits. Obligations of Trees Owner ■ The basis for the necessity to enable unfettered disposal of the trees for the worker is to allow the worker to perform his duties as per the contract. Joint Obligations of the Worker and the Owner of Trees ■ The basis for the joint responsibility of the owner of trees and the worker for the preservation of fruits before harvesting is that the owner may take the fruits after harvesting, However, before harvesting, the worker alone shall be responsible for the trees and fruits because the owner has granted him unfettered access to the trees. ■ The basis for the division of expenses between the owner and the worker (from their respective shares) is that it is more just (closer to justice) so that no harm is inflicted upon either party because of the other. ■ The basis for obligating the worker to complete the work is that Musaqat is a contract that becomes binding upon commencement of work, so that (6) Related by Muslim, Chapter on Musaqat for part of the fruits and plants. Also, related by Abu Dawud, Chapter on Musaqat. 1191
4. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) neither party shall have the right to revoke it unilaterally. And the basis for the non-entitlement of the worker to any compensation in case he stopped the work before materialization of the produce is that he abandoned his obligation toward completion of work and is thus not entitled to receive a share of the produce before materialization. And if the produce materializes, then another hand may be hired to complete the work at the expense of the worker because in such a case the worker (Al-Musaqi) is entitled to receive a share and shall not be deprived of it, and he shall complete the work, and such an obligation shall not be considered fulfilled unless work is completely carried out. Otherwise, the wage of the hired hands shall be deducted from the share of the worker (Al-Musaqi). ■ The basis for obligating the owner of trees, in case he prevented the worker from carrying out the work of Musaqat, to completely fulfil the contract is that the Musaqat contract becomes binding upon commencement of work or upon commitment of non-revocation (of the contract). And in the event that the owner revokes the contract before the produce materializes, the basis for obligating the owner to pay out the prevailing market wages is that the time and effort of the worker shall have to be compensated. And in the event that the owner revokes the contract after the produce materializes, then the worker is only entitled to his share in the produce (but not the prevailing market wages). Division of the Produce ■ The basis for the inclusivity of division of recurring produce is that the worker contributes with his work to the produce and thus shall not be deprived of his respective share. This roughly conforms to the standpoint of Ibadis and Malkis jurists, and coincides with the opinion of some of Hanifis. It has reported that Abu Said Al-Khudri opined that the worker deserves a share in the palm racemes and cotton straws, unless there is a customary practice (’Urf) or a condition (Shart) to the contrary. Abu Amr Al-Qurtubi also said: “Torn palm leaves and fibers and cords shall be shared by both parties according to their respective shares in the fruits”, and this conforms to the law of equity. (7) (7) “Bayan Al-Shar’” [40: 292 and 296]; and “Al-Kafi” [2: 107]. 1192
5. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) ■ The basis for specification of the worker’s share as a common share is the Hadith narrated by Rafi’ on the authority of Hanzhalah Ibn Qays Al-Ansari who said: “I asked Rafi’ Ibn Khadij about paying the rental of a land in gold and silver. He answered: ‘There is no objection to it, as people in the times of the Prophet (peace be upon him) used to pay rental for plants growing on water ravines/flumes/gullies and high points of streams and some sorts of plants. However, the Prophet (peace be upon him) prohibited such practices because the produce was not properly identified: Some of it used to grow and some used to perish, and people, at that time, were confined to this kind of rentals”. rentals” (8) ■ The basis for the entitlement of the worker to his respective share upon materialization of the produce is that he has contributed to the materialization. It is the opinion of some of Shafis and the majority of Hanbalis, and it is also followed by Imamis.(9) Contingencies in Musaqat ■ The basis for non-entitlement of the worker to anything (reward or compensation) if the produce perished or destroyed by a natural disaster is that one of the effects of partnership entails that the subject-matter of division is the produce. Therefore, if the produce perished or destroyed, then there shall be no division. The same applies to the division of remaining produce in case of partial destruction due to a natural disaster. ■ The basis for granting the worker the option, in case of non-materialization of the produce during the predetermined period of time, either to carry on his work gratis, or to stop working and lose his share in the produce, is as dictated by the rules of equity . The owner of trees benefits through keeping his trees, even if there is no produce. Any worker with an acceptable excuse is an exception, where he shall be entitled to his share for the worked period of time, as dictated by the rules of equity. Trees Belonging to Third Parties and Usurped Trees ■ The basis for the owner of trees being entitled to the fruits if it transpires that the trees belong to a third party is that in essence ownership of fruits shall (8) Related by Muslim, Chapter on rental of lands, payment in gold and silver. (9) “Kashf Al-Qina’” [3: 538]; “Al-Mughni” [5: 576]; “Al-Mubdi’” [5: 54]; “Al-Rawdah” [5: 160]; and “Jami’ Al-Maqasid” [7: 376]. 1193
6. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) remain in the hands of the owner unless by virtue of a contract. However, the contract, in this case, is void. The basis for obligating the party who contracted with the worker to pay out the prevailing wage to the maximum of his stated share is that he worked on a commutative basis, and the contract was doubtful (not properly evidenced or documented); it is impractical to pay him the agreed compensation due to the ownership of the third party, who shall be entitled to the compensation; i.e., the prevailing wage, up to a maximum of his stated share because the contracting party did not commit to pay him more than his share, especially that no transgression was premeditated. ■ The basis for entitlement of the owner of trees to take the fruits in case an usurper (Ghasib) of the trees contracted with someone else to carry out Musaqat works is that the fruits remain, in essence, owned by the owner unless by a contract to the contrary. And the contract here is void. The basis for obligating the usurper (Ghasib) to pay the worker who was unaware of usurpation is that it is tantamount to a paid work (work on a commutative basis) associated with a doubtful contract; it is impossible to pay him the agreed compensation because it belongs to someone else, who shall be entitled to the compensation; i.e., the prevailing wage. The worker shall be deprived of any payment if he is aware of usurpation because in such a case he becomes a transgressor, and he is among those referred to in the Hadith: “Ill-gotten sapling shall have no right therein” therein”.(10) Termination of Musaqat Contract ■ The basis for termination of Musaqat contract upon completion of produce and division of the crop or passing of the agreed period of time or of a season without any fruit is the application of the contract that entered into by the two parties. ■ The basis for termination of Musaqat contract upon the death of the worker or liquidation of the institution carrying out the work if Musaqat was subject to the condition of work commencement solely by him or the institution is that the condition was not met. The basis for granting the heirs (either through inheritance, in general, or by transfer of ownership, in particular) (10) Related by Al-Bukhari, Chapter on wasteland rehabilitation. Also related by Malik, Chapter on building on wasteland. 1194
7. Shari ’ah Standard No. (50): Irrigation Partnership (Musaqat) the option either to carry on the work as per the set conditions or to stop it is that the heirs or the owners of the institution have had legally inherited this right. The basis for their entitlement to the prevailing wage is that their testator was entitled to the compensation by virtue of his efforts. So if he had died before the produce materialized, then he shall be entitled to the compensation. The basis for limiting the compensation, which is the prevailing wage, to a maximum of the testator’s share in the produce is that the owner of trees did not commit to pay more than the worker’s share. And if continuation of work by the heirs does not entitle them to more than the share of their testator in the produce, then how shall they deserve more without work? ■ The basis for termination of Musaqat contract upon perishing of trees, subject matter of the contract, or inability of the trees to bear fruit is the Hadith stating: “There should be neither harm nor malice” malice”,, because the worker will be excessively harmed if he is obligated to work gratis (without compensation). Revocation of Musaqat Contract ■ The basis for revocation of Musaqat contract by mutual consent of the two parties is the Hadith of Prophet Mohammad (peace be upon him) stating: “Anyone who consents to revoke the contract upon the request of a regretting counterparty, Allah shall forgive his regretful sins on the Day of Judgment”. Judgment” (11) ■ The basis for obligation to pay the prevailing wage if the worker is unable to perform the work due to a reason out of his control is that the worker did exert an effort under a contract, therefore he shall be entitled to a compensation against that work, and that the work has not been performed in its entirety, and thus he is paid the prevailing market wage. ■ The basis for liability of the worker to indemnify the owner for actual loss suffered for a reason within his control is that he caused such a loss, and therefore shall be liable. (11) Related by Ibn Hibban, Chapter on Iqalah. 1195