Rules regarding Musaqat and Mugharisa
2246. Musaqat means that a person agrees with someone that for a specified time, the fruit-bearing trees owned by him, or those which are under his discretion, will be given to that person so that he cares, tends and waters them. In return, that person will have the right to take an agreed quantity of fruits. This transaction is called Musaqat.
2247. A transaction of Musaqat in respect of fruitless trees will be in order, if it has another product of substantial monetary value, like, any leaves of flowers which is sold for good gain - like, the leaves of Henna, which is in common use.
2248. While concluding a transaction of Musaqat, it is not necessary that the prescribed formula be pronounced. In fact, if the owner of the tree transfers it with the intention of Musaqat, and he who is to do the work begins doing the work with the same intention, the transaction is in order.
2249. The owner of the trees, and the person who undertakes to tend
and care for them, should both be adult and sane, and should not have been coerced
by anyone. Moreover, they should not be feeble-minded persons (who have no discretion
over the property), so that the property is not unnecessarily ruined.
Similarly, the owner must not be a bankrupt person. But if the person who tends and waters is bankrupt, he can be engaged to do the work, provided that, in so doing, he does not use the property he is not allowed to administer or use.
2250. The period of Musaqat should be known, and it must extend over a span of time when the harvest becomes ready. And if the beginning is specified, and its end is fixed to be the time when fruits for that year become available, the contract is in order.
2251. It is necessary that the share of each one of them is fixed as 1/2 or 1/3 etc. of the crop, and if they stipulate, for example, that one ton of the fruits will belong to the owner of the trees and the remaining quantity will go to the person who looks after the trees, the contract is void.
2252. It is not necessary that the contract for Musaqat be concluded before the appearance of the crop. In fact, a contract made after the appearance of the crop is valid, provided that, some work like increasing the crop, protecting the trees, is still required. But if no such work remains to be done, then a contract for merely watering the trees, plucking the fruits, and looking after them, cannot be valid.
2253. A contract of Musaqat for creeping plants, like melon and cucumber, is also valid.
2254. If a tree benefits from rainwater or the moisture of earth, and does not stand in need of irrigation, but needs other work as described in rule 2252, the contract of Musaqat will be in order.
2255. Two persons who have entered a contract of Musaqat can cancel it with mutual consent. Moreover, if they lay down in the contract of Musaqat, a condition that both or one of them will be entitled to cancel the contract, there will be no harm in cancelling the contract as agreed to by them. And if they lay down other conditions in the agreement, which are not followed, the person who was to benefit from that condition can cancel the contract.
2256. If the owner dies, the contract of Musaqat is not terminated, and his heirs take his place.
2257. If a person to whom the upkeep of the trees was entrusted dies, and if it was not agreed that he would tend and care for them himself, his heirs take his place. And if they do not do the job themselves, and also do not hire a person for the work, the Mujtahid will hire a person and pay from the estate of the dead person, and divide the crop between the heirs of the deceased and the owner of the trees. And if they had agreed that the man would tend and care for the trees himself, the contract will be cancelled upon his death.
2258. If it is agreed that the entire crop will belong to the owner, the contract of Musaqat is void, but the fruit will remain the property of the owner, and the worker cannot claim any wages, except when the contract of Musaqat is invalid because of some other reason. In that case, the owner will pay wages at the usual rate to the person who has reared the trees by watering them and doing other jobs. But if the usual amount of wages is more than the stipulated amount, and the opposite party was aware of it, it is not necessary for him to pay the excess.
2259. If a person hands over a piece of land to another person to plant
trees in it, and it is agreed that whatever is grown, will be the property of
both of them, the contract is called Mugharisa, and is valid, though it should
be avoided, as a precaution. However, a slight change in the method of achieving
the same purpose will make the contract valid, without any objection.
For example, if both the sides enter into this sort of agreement for settling and compromising their debts, or they become partners in the newly growing trees, and then the worker offers his services to the owner for tending and watering them for a specified period, against the wages equal to half the value of land.