(Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of the Followers of his Facebook Page "Fiqhi")
Answer to a Question
To Saleh Natseh
Question:
Assalamu Alaikum. I have a question regarding the ruling on two people partnering in farming a piece of land; the first person owns the land and the second one farms it. Is this permissible, or is it Muzara'ah (sharecropping)? I am confused about this matter; some of the brothers said it is Muzara'ah, while others said it is permissible, as the landowner can sell it during the three-year period, which is the grace period given to him to cultivate it. May Allah bless you.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
Muzara'ah is the leasing of land for cultivation. Many evidences have been narrated regarding the prohibition of Muzara'ah, including:
1- Al-Bukhari narrated in his Sahih from Abu Hurairah (ra), who said: The Messenger of Allah (saw) said:
مَنْ كَانَتْ لَهُ أَرْضٌ، فَلْيَزْرَعْهَا أَوْ لِيَمْنَحْهَا أَخَاهُ، فَإِنْ أَبَى، فَلْيُمْسِكْ أَرْضَهُ
"Whoever has land should cultivate it or give it to his brother [to cultivate]. If he refuses, let him keep his land." (Sahih Bukhari)
2- From Jabir (ra):
أَنَّ النَّبِيَّ ﷺ نَهَى عَنِ الْمُخَابَرَةِ
"The Prophet (saw) forbade al-Mukhabarah." (Sahih Muslim). Al-Mukhabarah is Muzara'ah.
3- In Sahih Muslim, from Jabir bin Abdullah, who said:
نَهَى رَسُولُ اللهِ ﷺ أَنْ يُؤْخَذَ لِلْأَرْضِ أَجْرٌ، أَوْ حَظٌّ
"The Messenger of Allah (saw) forbade taking a rent or a share for the land." (Sahih Muslim)
4- Rafi' bin Khadij narrated: We used to practice al-Mukhabarah during the time of the Messenger of Allah (saw). He mentioned that some of his uncles came to him and said: The Messenger of Allah (saw) forbade us from a matter that was beneficial to us, but obedience to Allah and His Messenger is more beneficial for us. He said: We asked, "What is that?" He said: The Messenger of Allah (saw) said:
مَنْ كَانَتْ لَهُ أَرْضٌ فَلْيَزْرَعْهَا، أَوْ فَلْيُزْرِعْهَا أَخَاهُ، وَلَا يُكَارِيهَا بِثُلُثٍ وَلَا بِرُبُعٍ وَلَا بِطَعَامٍ مُسَمًّى
"Whoever has land should cultivate it or let his brother cultivate it; he should not lease it for a third, a fourth, or a specified amount of food." (Sunan Abu Dawood)
5- In Sunan an-Nasa'i from Usaid bin Zhuhair:
نَهَى رَسُولُ اللهِ ﷺ عَنْ كِرَاءِ الأَرْضِ، قُلْنَا: يَا رَسُولُ اللهِ، إِذًا نُكْرِيهَا بِشَيْءٍ مِنْ الْحَبِّ، قَالَ: لا، قَالَ: وَكُنَّا نُكْرِيهَا بِالتِّبْنِ، فَقَالَ: لا، وَكُنَّا نُكْرِيهَا عَلَى الرَّبِيعِ، قَالَ: لا، ازْرَعْهَا أَوْ امْنَحْهَا أَخَاكَ
"The Messenger of Allah (saw) forbade the leasing of land. We said: 'O Messenger of Allah, then we shall lease it for some grain.' He said: 'No.' He said: 'We used to lease it for straw.' He said: 'No.' He said: 'We used to lease it for [the produce of] the land on the irrigation canals (al-rabi').' He said: 'No, cultivate it or give it to your brother.'" (Sunan an-Nasa'i). Al-Rabi' refers to a small river, meaning a stream; i.e., we used to lease it for the cultivation of the portion located by the stream, which is the side of the water.
It is clear from these Hadiths that the reality of Muzara'ah is the leasing of land, whether the rent paid is a portion of the output or something else... just as it is clear from them that Muzara'ah is forbidden...
The above evidences show that it is not permissible for land to have any return. Specifically, the Hadith of Muslim is explicit in this: "The Messenger of Allah (saw) forbade taking a rent or a share for the land." Likewise, the Hadith of Bukhari: "Whoever has land should cultivate it or give it to his brother..." and the Hadith of an-Nasa'i: "...cultivate it or give it to your brother." Thus, it is not permissible for land to have a return.
Accordingly, what was mentioned in your question ("the first has land and the second farms it...") means the land here is considered as wealth (capital) and has a share. This means the ruling of Muzara'ah applies to it. Calling it a partnership does not change this; rather, it is Muzara'ah and is not permissible. Likewise, it does not affect the Shari'ah ruling whether the Muzara'ah occurs during the three years or after it. The Shari'ah ruling is focused on the contract itself; it is invalid as long as a financial return of any kind is designated for the land, as explained in the aforementioned evidences.
Your brother, Ata bin Khalil Abu al-Rashtah
19 Sha'ban 1437 AH Corresponding to 26/05/2016 CE
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