Rules regarding Musaqat
2246. If 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 nurtures, 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 such as willow and plane-tree is void, and in trees like Henna whose leaves or any other tree whose flowers are of monetary value, transaction of Musaqat is most likely permissible.
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, there should not be any prohibition from Mujtahid over the undertaking of the trees to the owner.
2250. The period of Musaqat should be known, 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 necessary that the contract for Musaqat be concluded before the appearance of the fruits. And a contract made after the appearance of the fruits is
valid, provided that, some work like irrigation of the crop, which is necessary for the trees, is still required. But if no such work remains to be done, then there is Ishkal (objection) over a contract for merely plucking the fruits, and looking after them.
2253. A contract of Musaqat for creeping plants, like melon and cucumber etc., as per precautionary measures, is not 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 such as shoveling and fertilizing a tree to increase its outcome, 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, the contract of the Musaqat will not be terminated. 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 owner can terminate the contract by the death of the caretaker, or he can agree that the heir of the deceased or anyone they hire can take care of the trees. Indeed, if the condition in the contract was that the person himself will take care of the trees, 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 becomes void due to some other reason. In that case, if the person has taken care of the trees by the order of the owner, then he can ask for his wage from the owner.
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, as per
obligatory precaution, the contract will be void. If the trees belong to the owner of the land, then after they are grown up, they will remain the property of the owner, and he should pay the wage of the person who has taken care of it, provided that the owner has told him to do so.
And if the trees belong to someone who took care of it, it will remain his property when they are grown up, and can pluck it out of the land, however, he will have to fill the pit, which will occur due to the plucking of the trees, and will have to pay the rent of the land from the day he planted the trees. Moreover, the owner of the land can force him to pluck the trees out of his land, and if the owner of the land plucks it out and any harm occurs to the trees while plucking it out, the landlord will have to pay the difference to the owner of the trees. And neither of them can force the other for keeping the trees in its place, with or without rent.