Rules of Musaqat
2338. 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.
2339. Musaqat in respect of fruitless trees, such as plane tree and willow is not correct, but it has no harm regarding trees such as lotus and henna, which have valuable leaves or trees whose flowers are used for getting rosewater.
2340. 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.
2341. 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 person, who is barred from right of discretion by Shariah judge. But, if the person, who tends and waters is feeble-minded, 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.
2342. 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.
2343. It is necessary that the share of each one of them is fixed as ½ 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.
2344. 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.
2345. A contract of Musaqat for creeping plants, like melon and cucumber, is also valid.
2346. If a tree benefits from rainwater or the moisture of earth, and does not stand in need of irrigation, but needs other work such as working with shovel, adding fertilizers to soil and spraying pesticides to increase its growth and fruits, then Musaqat is in order; otherwise, there is Ishkal even if these are works like picking and preserving fruits.
2347. 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 not harm in canceling 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.
2348. If the owner dies, the contract of Musaqat is not terminated, and his heirs take his place.
2349. If a person to whom the upkeep of the trees was entrusted
dies, ad 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 Shariah judge
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.
2350. 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.
2351. 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 void, as an obligatory precaution. If trees belong to owner of land, then after growing, they also belong to him and he must pay wages of growers provided that its amount is more than the stipulated amount, and if the trees belong to grower, he may take them out but the holes of trees must be filled and rent of land from the day that trees were planted should be paid to land owner, provided that it is not more than stipulated. Also, landowner can force him to take the trees out, but if any harm is caused because of this, he must pay the difference of price but he cannot force the owner to let trees remain in land with or without rent.