Contract of Agriculture from Sharah Law Perspective. Professor Dr.

Joni Tamkin Bin Borhan & Muhammad Ridhwan Bin Ab. Aziz.

Abstract The Islamic law (fiqh) concerns all aspects of religious, social and economic life. Besides religious observances (Ibdt), this legal law seeks to regulate the institutions of family, marriage, inheritance, property relations, economic contracts and obligations as well as land tenure system. The problem of land tenure system and land development has been discussed copiously in the early fiqh literary sources. This paper tries to analyze various aspects with regards of agriculture from the perspective of Sharah law. Therefore, this paper will be divided into four sections namely the concept of agriculture from the perspective of Islam, the development of idle lands (I y al-Mawt), contracts of agriculture in the fiqh literatures and current issue in agriculture. Keywords: Agriculture, Iy al-Mawt, al-Musqt, al-Muzraah, Bay al-Salam. Introduction. The land tenure system and land development method in Islam are considered as one of the many ways to increase food supply and food production for the benefit of Muslim society at large. Yet, the accurate implementation of this method and contract will ensure positive effects to the social aspect in the peasant-landlord relationship as well as in the

Professor at Department of Syariah & Economics, Academy of Islamic Studies, University of Malaya. Ph.D candidate at Department of Syariah & Economics, Academy of Islamic Studies, University of Malaya.

economic side by increasing all source of earning to the Muslim community through the land development and agriculture attempts. Islam has mandated methods for the working of land in order to ensure that land is fully used rather than remains idle or uncultivated. As such, there are number of questions need to be solved such as how Islam views agriculture and idle lands, what is the precise method or contract that should be used by Muslim in order to develop and revive land and what are the current issues in agriculture? All these questions will be analyzed and answered in this paper based on views given by Muslim jurists and fiqh scholars from the perspective of sharah law. 1. Agriculture in Islam. Production function in the Islamic economics has been regulated by the concept of livelihood (al-Rizq) as well as lawful (all) and unlawful (arm) sources of earnings. The term al-Rizq is applied to connote means of livelihood and further production, which has been intimated by the Prophet Muammad (.a.w.) and predetermined by Allah (s.w.t.). Islamic law as revealed from doctrines of Allah ( s.w.t.) has laid down detailed rules and regulations regarding seeking livelihood and earnings. Islam has discouraged all persons from remaining unemployed without reason1. In fact, Prophet Muammad (.a.w.) was very mindful about the economic utilization of resources. The concept that all the resources are a gift from God contains a suggestion that they should be utilized carefully. As such, the Holy Prophet ( .a.w.) laid emphasis on intensive development of human resources. He (.a.w.) assigned a high value on industry, efficiency and labor2. In his prayer, Prophet Muammad (.a.w.) asks Allah (s.w.t.) to refuge himself from hunger, poverty and destitution. He (.a.w.) said in the following adth:

Jammat-e-Islami Pakistan, Islamic Laws Regarding Profession And Earning, http://www.jamaat.org/islam, 30th November 2008. 2 Muhammad Akram Khan (1992), Economic Teachings of Prophet Muhammad, Delhi: Oriental Publications, p.214.

Allah, I seek thy refuge from hunger for it is the evil bedfellow3. Allah, I seek thy refuge against poverty, and I seek thy refuge from paucity and humiliation, and I seek thy refuge that I do wrong or wrong is done to me4.

He (.a.w.) also said in a adth narrated by Ab Sad al-Khudr5:

Allah, I seek thy refuge from infidelity and destitution.

Meanwhile, land has been an important factor of production since ancient times. Emphasis on the development of dead lands or barren lands is indicative of the Prophet Muammad (.a.w.) interest in the utilization of resources for the well-being of people. Good peasant-landlord relationships are fundamental for the economic well-being of the population dependent on the soil6. The Holy Prophet has given general instructions to regulate the peasant-landlord relationships, but details of the law have been left to the temporal context within the framework of Sharah. In addition, he (.a.w.) placed a high value on the economic welfare of the people. He (.a.w.) liked to see the Muslims well-off rather than hungry and destitute. There are some traditions, which suggest that the Holy Prophet desired to see his followers at a higher echelon on the ladder of development7.

Sunan al-Nas (1999), Riy: Dr al-Salm, Kitb al-Istidhah, adth No:5471, p.744; Sunan Ab Dud (1999), Riy: Dr al-Salm, Kitb al-Witr, adth No: 1547, p.228. 4 This adth was narrated by Ab Hurairah. See Sunan al-Nas, op.cit., Kitb al-Istidhah, adth No: 5464, p.743; Sunan Ab Dud, op.cit., Kitb al-Witr, adth No: 1544, p.227. 5 Sunan al-Nas, op.cit., Kitb al-Istidhah, adth No: 5487, p.747. See also Sunan Ibn Mjah (1999), Riy: Dr al-Salm, Abwb al-Do, adth No: 3838, p.548. 6 Muhammad Akram Khan, op.cit., p.41; Afzul-Ur-Rahman, op.cit., p.108. 7 Muammad Bqir a-adr (1983), Iqtidun, Tehran: World Organization for Islamic Services, Vol.2-Part.1, pp.126-127; M. Umer Chapra (1992), op.cit., pp.263-265; Muhammad Akram Khan, op.cit., p.41.
3

After establishing the state of Medina, one of the first steps, which the Holy Prophet (.a.w.) took was the establishment of brotherhood among the Anars of Medina and Muhjirs or immigrants from Mecca. This brotherhood was, in fact, a step towards the economic rehabilitation of the newly arrived immigrants. Medina had an agrarian base and bulk of local populations was engaged in agriculture8. Prophet Muammad (.a.w.) invited people to develop the dead land (al-Mawt). He (.a.w.) creed that the dead land belongs to the person who develops them. The Prophet also instituted many laws regarding cultivations and marketing of agricultural products9. However, Islam has not permitted cultivation of plants, eating of which has been prohibited. Cultivating opium and cannabis for instance, is therefore prohibited. Cultivation of any prohibited thing for sale to non-Muslims is also forbidden10. In the al-Qurn, while referring to His bounties and favors to mankind, Allah mentions the principles needed for the pursuit of agriculture. Allah has spread out the earth and made it suitable and fertile for cultivation and production. This is a bounty to human beings, which we ought to recall and be thankful for. Al-Qurn has encouraged agriculture in many of its verses11. Allah (s.w.t.) stresses in the al-Qurn: And the earth We have spread out (like a carpet), set thereon mountains firm and immovable, and produced therein all kinds of things in due balance. And We have provided therein means of subsistence, for you and for those for whose sustenance ye are not responsible. Srah al-ijr (15):19-20.
8 9

Ibid. Afzul-Ur-Rahman, op.cit., pp.159-163; Muammad Bqir a-adr, op.cit., Vol.2-Part.1, pp.107-120; Muhammad Akram Khan, op.cit., p.41; 10 Jamaat-e-Islami Pakistan,, Islamic Laws Regarding Profession and Earning, http://www.jamaat.org/islam, 30th November 2008. 11 Yusuf al-Qaradawi, op.cit., p.128; Afzul-Ur-Rahman, op.cit., pp.87-88; Mastura Mohd. Zin (2008): Menimba pahala daripada hasil bumi, Berita Harian: May 13, p.11; Irsad Lubis, op.cit., p.63.

It is He who has spread out the earth for (His) creatures. Therein is fruit and date-palms, producing spathes (enclosing dates). Also corn, with (its) leaves and stalk for fodder, and sweet-smelling plants. Then which of the favors of your Lord will ye deny? Srah al-Raman (55):10-13.

Prophet Muammad (.a.w.) said in a adth narrated by Anas12: When a Muslim plants a plant or cultivates a crop, no bird or human being eats from it without its being accounted as a rewardable charity for him.

2. Development of Idle Land (Iy al-Mawt). The word al-Iy literally means making a thing to recover or reviving land by putting fence surrounding it, or cultivating and developing on it13. Al-Mawt refers to a thing that has no spirit or soul, or land that has no possessor or it also can be defined as an idle land without any development on it14. According to asan Ayb, al-Mawt means land with no prosperous15. From the fiqh terminology, al-Iy is rehabilitation of idle land by constructing building (house or factory) or doing agricultural project or ploughing or any other attempts. Al-Mawt refers to a land with no activity on it, no water supply, no ownership and no one extracting benefit from it16.
a al-Bukhr, op.cit., Kitb al-arth wa al-Muzraah, adth No:2320, p.372; a Muslim, op.cit., Kitb al-Musqt wa al-Muzraah, adth No:3970, p.679. 13 Ibn Manr, op.cit., Vol.9, p.233.
12

Ibn al-Hummm (2003), Shar Fat al-Qadr, Riy: Dr lim al-Kutub, Vol.8, p.136. Al-Mawt also means destroy and outworn. See Ibn Qudmah (1992), al-Mughn, Qhirah: Hijr, Vol.8, p.145. 15 asan Ayb (2006), Fiqh al-Mumalt al-Mlyyah f al-Islm, Qhirah: Dr al-Salm, p.443.
14

According to anaf school of Islamic jurisprudence, idle land means a land with no prospect on it, because the land has no water supply or engulfing with water and no one owned that land17. Al-Shfi pointed out that idle land is land with no development on it, has no control by anyone either the land is located near or far away from developed area18. Succinctly, from the fiqh perspective, the revival of idle land consists of elements such as clearing, cultivating, hedging, spreading and existing of water supply19. The legality of reviving idle land has clearly stated in the following adth: Whoever cultivates uncultivated land (belonging to nobody) will possess it20. Whoever cultivates uncultivated land will possess it, provided that the land does not belong to any Muslim, otherwise one has no right to plant anything in it oppressively21. He who cultivates land that does not belong to anybody is more rightful (to own it)22. Moreover, ulam of different views when discussing method of reviving idle land. anafs scholars point out that method for developing idle land is via constructing building on it or doing agricultural activities, or establishing dam or water drain on it, or anything else which are connected to land development23.
Al-Buht (1974), Kashshf al-Qin, Makkah: Mabaah al-ukmah, Vol.4, p.205; Al-Sharbn alKhab (1958), Mughn al-Mutj, Qhirah: Mabaah Musaff al-Bb al-alab, Vol.2, p.361; Ibn Juzayy (1976), op.cit., p.339; Al-Dardr (1880), al-Shar al-Kabr, Qhirah: Mabaah al-Azharyyah, Vol.4, p.66. 17 Al-Maydn (1998), al-Lubb f Shar al-Kitb, Beirt: Dr Iy al-Turth al-Arab, Vol.1, p.218; alMward, op.cit., p.177. 18 Al-Sharbn al-Khab, op.cit., Vol.2, p.361; al-Mward, op.cit., p.177. 19 Al-ann (1960), Subul al-Salm, Qhirah: Iy al-Turth al-Arab, Vol.3, p.82. 20 This adth was narrated by Umar. See a al-Bukhr (1999), Riy: Dr al-Salm, Kitb al-arth wa al-Muzraah, adth No:2335, p.375. This same adth also narrated by Jbir Bin Abd Allh and has been recorded in Jmi al-Tirmidh (1999), Riy: Dr al-Salm, Abwb al-Buy, adth No:1379, p.335. 21 This adth was narrated by Amr Bin Auf. See a al-Bukhr (1999), Riy: Dr al-Salm, Kitb al-arth wa al-Muzraah, adth No:2335, p.375. This adth also was narrated by Sad Bin Zad. See Jmi al-Tirmidh, op.cit., Abwb al-Buy, adth No:1378, p.334. 22 This adth was narrated by ishah. See a al-Bukhr, op.cit., adth No:2335, p.375. 23 Al-Maydn, op.cit., Vol.2, p.218.
16

According to Mlik school of Islamic jurisprudence, method of reviving idle land is through constructing any type of building, cultivating any type of plants, digging land, constructing water drain and doing one of the following attempts24: a) Digging well for water supply. b) Drying water if the land is full with water. c) Building boundary. d) Digging land. e) Cutting unwanted trees. f) Flatting land and throwing out stones. Besides, Shfis jurists of the opinion that the method of reviving idle land is depended on the purpose of the revival. For resident area, it is stipulated that the explorer constructs fence around the area. It is also stipulated that the explorer needs to construct building on the land completed with roof and door since based upon custom ( urf), every building must have roof and door25. If the purpose of the development is for animal breeding, it is enough by constructing fence surrounding the area without roof because usually breeding area is built without roof. If the purpose of the revival is for the agriculture activities, it is stipulated for the construction of boundary, flatting the land and constructing of well or ditch. Likewise, if the purpose of the revival is for recreation park, the land shall be constructed by fence, cultivating of grass and constructing water supply26. Yet, according to anaf school, method for reviving idle land is by constructing fence surrounding the area either for the purpose of doing agriculture activities or constructing building or animal breeding27. This is based on a adth narrated by Samurah28:
24 25 26 27

Al-Dardr, op.cit., Vol.4, p.69; Ibn Juzayy, op.cit., p.339. Al-Sharbn al-Khab, op.cit., Vol.4, p.365; Al-Shrz, op.cit., Vol.1, p.424.

Ibid. Ibn Qudmah, op.cit., Vol.5, p.538; Al-Buht, op.cit., Vol.4, p.212. 28 Sunan Ab Dud (1999), Riy: Dr al-Salm, Bb f Iy al-Mawt, adth No:3077, p.451.

Whoever constructing fence for an area, will possess it.

3. Contracts of Agriculture. For the purpose of this paper, only three contracts involving agriculture and agriculture activities will be discussed, as follows: a) Al-Musqt. Al-Musqt (partnership29 in management) literally means irrigating or watering, from the root word of Saq30. The resident of Madnah has named al-Musqt as alMumalah31. Scholars from anbal school have listed the contract of al-Musqt as a kind of partnership32. From the fiqh terminology, al-Musqt refers to a type of submitting land contract towards cultivator or worker (person who manages the cultivation) with return in produce. In other words, al-Musqt means a contract with remuneration based upon the crops
The term of partnership is normally interpreted in Islamic Law as Mushrakah and the Islamic financial institutions interpret it as participation in financing. See Nabil A. Saleh (1986), Unlawful Gain and Legitimate Profit in Islamic Law: Riba, Gharar and Islamic Banking , Cambridge: Cambridge University Press, p.91; A. Rahman I.Doi (1990), Shariah: The Islamic Law, Kuala Lumpur: A.S. Noordeen, p.364. Yet, the Majallah alAkm al-Adliyyah defines it as partnership by contract consists of an agreement for association, on the condition that the capital and its benefit be common between two or more persons. See The Mejelle (2001), Kuala Lumpur: The Other Press, Chapter VI, Section 1, Article 1329, p.217. Majority of ulam have divided partnership into two categories namely Property Partnership ( Shirkah al-Amlk), which means joint ownership of a property such as immovable property, factory, cars and etc. Secondly, Contractual Partnership ( Shirkah Uqd), which is joint participation in profit and losses. See al-K sn (1974), Badi al-ani, Beirt: Dr al-Kitb al-Arab, Vol.6, p.56; Abd al-Raman al-Jazr (n.d.), Kitb al-Fiqh al alMadhhib al-Arbaah, Riy: Dr al-Irshd, Vol.3, pp.56-60; Muaf al-Khinn et.al. (1992) al-Fiqh alManhaj al Madhhab al-Imm al-Shfi, Damshiq: Dr al-Qalam, Vol.3, pp.57-59; Ab Bakr Jbir alJazir (1979), Minhj al-Muslim, Qhirah: Maktabah al-Kulyyt al-Azharyyah, pp.400-403; Sayyid Sbiq (1994), Fiqh al-Sunnah, Beirt: Dr al-Kitb al-Arab, Vol.4, p.230. 30 Ibn Manzr (2003), Lisn al-Arab, Riy: Dr lim al-Kutub, Vol.10, p.114. 31 Ibn Qudmah (1972), al-Mughn, Beirt: Dr al-Kitb al-Arab, Vol.5, p.554; Ibn bidn (1979), shyah Radd al-Mutr, Beirt: Dr al-Fikr, Vol.6, p.285; Imrn al-Umrn (2002), al-Bayn f Fiqh al-Imm al-Shfi, Beirt: Dr al-Kutub al-Ilmyyah, Vol.7, p.217. 32 Ibn Taymyyah (n.d.), Majm al-Fatw, Maghribi: Maktabah al-Marif, Vol.30, p.103.
29

production. It is a contract of submission of land by crop owner to the cultivator or guardian who involves in the jobs such as reviving, irrigating and other relevant jobs according to the specific conditions and will be allocated return based on crops produce33. Besides, al-Musqt from the fiqh terminology also means a contract of service upon tree and crop with specific conditions34. Yet, Imm Mlik has divided crop into five categories. Firstly, crops which are permanent basis and produced fruits such as dates, grapes, olives, lemons and etc. Secondly, crops which are permanent basis but produce no fruits like tamarisks, pines and etc. Thirdly, crops that are not permanent basis but produced fruits such as rice and cucumber. Fourthly, crops that are not permanent and produced no fruits for instance, rose and jasmine. Lastly, green crops and vegetables like onion, garlic and radish35. In addition, ulam from Shfi school of Islamic jurisprudence defines alMusqt as a partnership of management in submitting date or grape trees towards guardians who involves in irrigating and preserving the crops with conditions that the produce will be divided equally between both of them36.

Muaf al-Khinn et.al., op.cit., Vol.3, p.25; Ibn Qudmah, op.cit., Vol.5, p.554; al-Ksn, op.cit., Vol.6, p.185; Ab al-Naj al-ajjw (1999), al-Iqn lilib al-Intif, Riy: Dr lim al-Kutub, p.475. 34 Abd al-Raman al-Jazr, op.cit., Vol.3, p.19. 35 Ibid.
33

Al-Sharbn al-Khab (1958), Mughn al-Mutj, Qhirah: Mabaah Muaf al-Bb al-alab, Vol.2, p.322; al-Buht (2003), Kashf al-Qin, Riy: Dr lim al-Kutub, Vol.3, p.523; Ibn Juzayy (1976), al-Qawnn al-Fiqhyyah, Beirt: Dr al-Qalam, p.279; al-Ksn, op.cit., Vol.6, p.185; Ibn bidn, op.cit., Vol.6, p.286; al-Nawaw (1992), Minhaj Et Talibin. E.C. Howard (trans.), New Delhi: Navrang, p.215. According to the fuqah, there existed in the pre-Islamic agrarian systems in Arabia and elsewhere certain inchoate and customary forms of landholding, which were primarily characterized by an aleatory and precarious nature. Under these land tenures rent of land was not fixed in clear and precise terms, the shares of tenant and landlord were not determined beforehand. These forms of tenancy are variously termed in the adth and fiqh literature as al-Mukhbarah or Khybr, al-Muqala or aql, al-Mujarah, alMuzraah, al-Musqt and etc. They of the opinion that these primitive tenures antedated Islam. See Ziaul Haque (1977), Landlord and Peasant in Early Islam, Pakistan: Islamic Research Institute, pp.10-11.
36

Furthermore, Majallah al-Akm al-Adlyyah37 defines al-Musqt as a kind of partnership on the terms that trees are to be found by one, and cultivation by the other, and that the fruit produced is to be shared between them38. Majority of ulam (Mlik, Shfi and anbal) view that the contract of alMusqt is legal based on certain circumstances 39. Their views are based on the practice of al-Musqt by Prophet Muammad (.a.w.) himself. Prophet Muammad (.a.w.) said40: The Prophet (.a.w.) made a deal with the people of Khaybar that they would have half the fruits and vegetation of the land they cultivated.

In this regard, perhaps the crop owner has no skills for managing his own farm or he has no time in handling it by his own and at the same time, person who has skills and time has no farm for cultivation. At this point, both parties are needed each other for the crop
Majallah al-Akm al-Adlyyah or the Book of Rules of Justice was the civil code of Ottoman Caliphate (1877-1926). The master architect of the preparation of this Majallah was Cevdet Pasha, an eminent scholar and statesman. He strongly advocated the compilation of the civil code of the Ottoman Caliphate that is based on Sharah principles. Other branches of law during that period of time, or rather after the proclamation of the Gulhane charter in 1837, were based on continental European laws especially French codes. However, the Majallah did not contain all the provisions of civil law. The introductory part of the Majallah, consisting of 100 articles, are legal maxims or legal formulae for immediate application in the court of law. These legal maxims are comprehensive in character from which judges and the lawyers could seek the assistance to base their judgments and arguments respectively. The total number of articles in the Majallah is 1,851 and the main school of law relied on was anaf with particular reliance on ahr al-Riwyah, the most authoritative view of law in this school of law. See The Mejelle (2001). C.R.Tyser, B.A.L. (trans.), Kuala Lumpur: The Other Press, p.v. 38 The Mejelle, op.cit., Article: 1441, p.238. 39 Abd al-Raman al-Jazr, op.cit., Vol.3, pp.20-22; Muaf al-Khinn et.al., op.cit., Vol.3, p.25, Imm alShfi (1961), al-Umm, Qhirah: Maktabah al-Kulyyt al-Azharyyt, Vol.4, p.11; Imrn alUmrn, op.cit., Vol.7, p.217; Imm Mlik Bin Anas (1994), al-Mudawanah al-Kubr, Beirt: Dr alKutub al-Ilmyyah, Vol.3, p.562; Charles Hamilton (1982), The Hedaya, Lahore: Premier Book House, p.584. 40 This adth was narrated by Ibn Umar. See a al-Bukhr, op.cit., Kitb al-arth wa alMuzraah, adth No: 2329, p.374; a Muslim, op.cit., Kitb al-Musqt wa al-Muzraah, adth No: 3962, p.678. This adth is a solid proof for the validity of al-Musqt contract. See al-Shawkn (2003), Nayl al-Awr, Riy: Dr lim al-Kutub, Vol.3, p.7. This adth also explain the validity of the both contracts of al-Musqt and al-Muzraah according to the view of Al (r.a.), Ab Bakr (r.a.), Umar (r.a.), Amad, Ibn Khazmah and the majority of fuqah. See asan Ayb (2006), Fiqh alMumalt al-Mlyyah f al-Islm, Qhirah: Dr al-Salm, p.261.
37

10

cultivation, the owner needs cultivator and vice verse. Thus, this shows that the contract of al-Musqt is truly desired and needed41. According to Ibn Qayyim, the story of Khaybar is a proof for the validity of the contract of al-Musqt and al-Muzraah with the specific distribution of the fruit produce. This activity is continued until today without any annulment (nasakh) by the Prophet Muammad (.a.w.). This activity was carried on by the Caliphate al-Rshidn and was not included as a part of contract of al-Ijrah42 but instead, in the contract of partnership, similar to the contract of al-Murabah43. This view was also shared by Imm al-Baghaw, when he of the opinion that the adth is a proof for the validity of al-Musqt contract, which is the capitulation of date or vine orchard by its owner towards other for cultivation and taking care of the orchard whereby the produce of the orchard shall be divided in certain portion such as half or one third or one forth44.
Ibn Qudmah, op.cit., Vol.5, p.384; al-Sharbn al-Khab (1958), op.cit., Vol.2, p.322. Ijrah (lease or hire contract) means a contract of usufruct ( manfaah). The contract of Ijrah is permissible according to the jurists of all regions and those of the first period. The proof of the majority are the words of the Exalted, as Allah (s.w.t.) says to the effect in the following verses: He said: I intend to wed one of these my daughters to thee, on condition that thou serve me for eight years (Srah al-Qaa 28:27), And if they suckle your (offspring), give them their recompense (Srah al-alq 65:6). The jurists consider the kinds of Ijrah to be of two categories namely, the Ijrah of the benefits of corporeal property and the Ijrah of benefits existing as a liability. Based on this classification, Ijrah is not only related to the leasing property but also services, which normally term as employment. In the Ijrah of services, the employer is called Mustjir and the employee Muajir. The contract between the two parties involves the employment of the services based on an agreed prefixed wages or salaries ( Ujrah) given to him as reward for the services rendered in the transaction. Thus, irrespective of whether the employer is making a loss or a windfall profit, he must pay the predetermined wages of his employee as specified in the contract. See Mu af al-Khinn et.al., op.cit., Vol.3, p.137; Ibn bidn, op.cit., Vol.6, p.4; Abd al-Raman al-Jazr, op.cit., Vol.3, p.82; Charles Hamilton, op.cit., pp.489-450; Ibn Rushd (1996), op.cit., pp.264-273. 43 asan Ayb, op.cit., p.261. Al-Murabah means a contract between two parties, when a party ( rab al-Ml) gives his property to the other party ( murib) for a certain investment whereby the profit shall be divided between them and loss shall be incurred solely by the capital provider. The legality of this contract can be proofed by the following verse. Allah (s.w.t.) says to the effect: Others traveling through the land, seeking of Allahs bounty (Srah al-Muzammil 73:20). In this contract, the investor agrees to finance the entrepreneur via capital that will be returned back plus the division of profit at agreed ratio after the completion of the project, whereby any loss if occurred is upon the investor solely. The proportion of the profit shall be divided in terms of proportional basis and cannot be in lump sum basis or in a guaranteed return. If the project incurres loss because of the uncontrolled elements of entrepreneur, the investor will be responsible solely upon that lose whereas, the entrepreneur will waste in terms of his energy and time spent in completing the project. See for example Ibn alHummm, op.cit., Vol.7, pp.57-63; al-Ksn, op.cit., Vol.6, pp.79-85; Abd al-Raman al-Jazr, op.cit., Vol.3, pp.30-38; al-Sarakhs (2001), al-Mabs, Beirt: Dr al-Kutub al-Ilmyyah, Vol.22, pp.18-20. 44 Ibid., p.262.
41 42

11

Ibn Juzayy from Mlik school of fiqh pointed out that this contract is legitimate except in the case of ambiguous leasing and selling of non-existence goods 45. Yet, according to Ab Ysuf, the contract of al-Musqt is permissible (Jiz) as the contract of alMurabah. To him, whoever says that this contract is void, he actually devastating the land and whoever permits this kind of contract, he actually permits the land to be expanded and grew46. Furthermore, Imm Shfi of the opinion that the contract of al-Musqt is valid, similar to the contract of al-Muzraah when they happen in subordination to the former as, for instance, where the fruit trees grow in fertile and clean ground, which is watered for the nourishment of the trees, and the owner directs the cultivator to sow a crop on the ground on condition that he shall get share like one half of the produce47. The essence for al-Musqt contract according to the majority of ulam (Shfi, anbal and Mlik) can be classified into five, as below: i) Parties in the Contract. The al-Musqt contract must be done by persons who are eligible to join in the contract of property such as have sound minds and they are puberty (Bulgh). The reason is that al-Musqt is a form of contract, which involves the use of property or al-Mumalt al-Ml. As such, persons who are not qualified to manage their properties cannot participate in this contract. In some cases, a guardian ( wal) may represents child, insane or dumb persons in this kind of contract48. ii) Source of Partnership.
Ibn Juzayy, op.cit., p.279; Ibn Rushd (1995), Bidyah al-Mujtahid wa Nihyah al-Muqtaid, Beirt: Dr alFikr, Vol.2, p.242. 46 Ab Ysuf, op.cit., p.95. 47 Charles Hamilton, op.cit., p.584; Ibn al-Hummm, op.cit., Vol.8, p.46. 48 Al-Shrz (1976), al-Muhadhdhab, Damshiq: Dr al-Qalam, Vol.1, pp.390-392; al-Sharb n al-Khab (1958), op.cit., Vol.2, pp.323-328; al-Buht, op.cit., Vol.3, pp.523-529; Ibn Qudmah, op.cit., Vol.5, pp.368372; Muaf al-Khinn et.al., op.cit., Vol.3, p.26; Abd al-Raman al-Jazr, op.cit., Vol.3, pp.25-26; Imrn al-Umrn, op.cit., Vol.7, pp.220-225.
45

12

According to jurists from Shfi school, the originality for this contract is date and grape fruits49. Meanwhile, ulam from anbal school regards that the originality of this contract is fruit plant that requires a form of management by the cultivator or tiller who will gain a division of fruit produce. This partnership will nullify unless the contract specify the particular tree. If the tree is unclear and cannot be identified thus, this contract will void50. iii) Fruit. Distribution of fruit produce for each party has to be clearly defined, between owner and cultivator. All the fruits produce from the orchard is regarded as the production in this contract and must be divided equally between both parties. It is considered as null if only one party receives all of the fruits produce. Therefore, it is stipulated that both parties obviously understand and agree upon the distribution of the produce such as 50 to 50, 40 to 60 or 70 to 30 or etc51. Based on the strongest view in Shfi school, this contract of al-Musqt is considered as valid whence the trees start to bear fruit although the trees are still green and unripe. This kind of partnership is only applicable for the managing of planted trees52. The contract of managing orchard may be prolonged until future date such as five years from now, provided that in the normal calculation, the fruit will be ripe in five years time. Once the period is over, but the tree still not bears any fruit, the cultivator will gains nothing53.

Muaf al-Khinn et.al., op.cit., Vol.3, p.26; Imrn al-Umrn, op.cit., Vol.7, pp.220-225; al-Sharbn al-Khab (1958), op.cit., Vol.2, pp.323-328; 50 Abd al-Raman al-Jazr, op.cit., Vol.3, pp.25-26; Ibn Qudmah, op.cit., Vol.5, pp.368-372. 51 Muaf al-Khinn et.al., op.cit., Vol.3, pp.29-30; Imrn al-Umrn, op.cit., Vol.7, pp.223. 52 Muaf al-Khinn et.al., op.cit., Vol.3, p.28; Imrn Umrn, op.cit., Vol.7, p.223. 53 Abd al-Raman al-Jazr, op.cit., Vol.3, pp.28-29; al-Nawaw, op.cit., p.216; Imrn Umrn, op.cit., Vol.7, p.223.
49

13

Now that if the agreed period is still not adequate for the tree to bear fruit, this contract is nullified since from the beginning the cultivator has realized that his job will not getting any produce54. iv) Job. The cultivator is given fully control over his work. This includes the entire scope of managing the orchard for instance, how, when and methods of accomplishing his jobs. If in any case that the contract has stipulated the landlord to be join along in the management jobs, this type of al-Musqt contract is regarded as null and void55. Furthermore, the condition for legality of this contract is that the cultivator is not stipulated to do job which is not relevant to his job of managing orchard such as digging well or drain. If he is stipulated to do so, the contract will be nullified since it is a kind of leasing or hiring56. Jurists from Shfi school of law also stipulated that the job of managing the orchard is clearly defined in terms of period such as one year or more, or at least in the period that the orchard can be managed. The choosing of absolute period (period with no specific time or period with no ends) is regarded as invalid. The reason is that the contract of alMusqt is a binding contract, which requires specific time to be completed as in contract of hiring57. If during the period of contract, the tree bears no fruit then the contract is regarded as invalid since it gives nothing in return, similar in the case of contract of tree with no fruits at all. The strongest view from the Islamic jurists says that contract with certain period

54 55

Ibid. Abd al-Raman al-Jazr, op.cit., Vol.3, pp.26-27; Muaf al-Khinn et.al., op.cit., Vol.3, pp.28-29; alNawaw, op.cit., p.217. 56 Muaf al-Khinn et.al., op.cit., Vol.3, p.29. 57 Muaf al-Khinn et.al., op.cit., Vol.3, pp.29-30; Abd al-Raman al-Jazr, op.cit., Vol.3, p.27; alNawaw, op.cit., pp.216-217.

14

specification, but the trees bear no fruits are not legitimate since there is a delay in the time of producing fruit58. According to anbal jurists, specification of period in the contract is not required in the contract of al-Musqt since Prophet Muammad (.a.w.) himself did not specify the period of contract when dealing with the resident of Khaybar and this practice had been followed by his caliphs59. v) Word Expression (ghah) of Contract. The word expression of this contract can be done by the landowner or cultivator such as the cultivator says to the owner I will manage your orchard with the distribution of fruit produce of 30 to 70 or 40 to 60. Otherwise, the owner says to the cultivator I surrender this orchard management to you with produce sharing contract or I cede you my plantation to be taken care of or any similar of wording. The most important thing is that these word expressions are not in the form of hiring since jurists from Sh fi school of the view that the word expression of hiring cannot be used for this kind of contract60. Nonetheless, scholars from anbal school opine that word expression for alMusqt contract can be used similar to the word expression in the hiring contract of land with some amount of payment from the orchard produce. This is because the most important matter in the word expression is the meaning of the contract and not solely on the utterance or pronunciation. Therefore, if someone express words that show towards the meaning of the alMusqt contract, the contract is considered legitimate61. In addition, scholars from Shfi school of fiqh stipulates that the acceptance from the person who is accepted the proposal must be done by the word expression also as in the
58 59

Ibid. See a al-Bukhr, op.cit., Kitb al-arth wa al-Muzraah, adth No: 2329-2332, p.374; a Muslim, op.cit., Kitb al-Musqt wa al-Muzraah, adth No: 3962-3967, pp.678-679. 60 Muaf al-Khinn et.al., op.cit., Vol.3, p.27; Abd al-Raman al-Jazr, op.cit., Vol.3, pp.23-25; Imrn alUmrn, op.cit., Vol.7, p.227. 61 Wahbah al-Zuail (2004), al-Fiqh al-Islm wa Adilatuh, Damshiq: Dr al-Fikr, Vol.6, pp.4712-4713.

15

acceptance of proposal for other kinds of contracts. Nevertheless, acceptance in the form of body signal or in writing is allowed especially for those who are handicapped like blind and mute62. In the contrary, jurists from anbal school of Islamic jurisprudence of the opinion that the contract of al-Musqt does not require any word expression, instead it is enough by starting the agreed jobs, similar in the contract of representative63. According to jurists from anaf school, the contract of al-Musqt terminates with one of these three elements namely by the expiry of the period, the decease of any party in the contract and by the illness. Amongst the illness that brings to this nullification is when the cultivator is known as a thief. Hence, this contract is terminated because of the suspicious of the fruit will be stolen. This matter should be done in order to prevent any losses to the owner64. Secondly, the cultivator is in the state of illness that makes him unable to carry out his jobs and responsibilities. If the contract is still continued by paying someone else through sub-contract, the situation may bring a lot more harm. Thus, it is not a compulsory to carry on with this contract in order to preserve everyones interest. In the case when the cultivator was dead, his heir should continue the management jobs until the tree bear fruit although the owner does not agree with this continuity of the jobs by the heir65. Conversely, if the orchard owner was dead, the cultivator shall continue with his jobs even though the owners heir does not like it. This is for the sake of both parties in the contract. In the case when both parties were dead, the option is upon the cultivators heir. If they refuse to carry on with the jobs, then the option will go to the owners heir66.

Muaf al-Khinn et.al., op.cit., Vol.3, pp.26-27; Abd al-Raman al-Jazr, op.cit., Vol.3, p.25. Al-Buht, op.cit., Vol.3, p.523; Wahbah al-Zuail, op.cit., Vol.6, p.4712. 64 Al-Ksn, op.cit., Vol.6, p.188; Ibn bidn, op.cit., Vol.6, pp.286-291; Charles Hamilton, op.cit., pp.585-587; Ibn al-Hummm, op.cit., Vol.8, pp.47-48. 65 Ibid. 66 Imrn Umrn, op.cit., Vol.7, p.234; Ibn al-Hummm, op.cit., Vol.8, p.48.
62 63

16

In the case of both parties in the contract die, this school of fiqh view that the heirs of the cultivator may continue to work, for as, if the cultivator had lived, and the owner of the orchard had died, the cultivator might has continued to work, it follows that his heirs, as being his substitutes, have same thing in their option. Yet, if the term of the contract should expire whilst the fruit is still green and unripe, the cultivator may continue in his employment until it become ripe and he is not liable for any rent on account of the trees67. If the term of the contract of al-Musqt expires at a time when the fruit is still green, the cultivator alone is obliged to perform the rest of the work, whereas, if the term of the contract is expired when the crop is still green, both parties are obliged to work until the crop is brought to maturity68. Meanwhile, scholars from Mlik school of Islamic jurisprudence pointed out that al-Musqt contract are an inheritance contract. For the cultivators heir, they can bring someone who is trusted to continue the management works. Yet, this contract is not nullified merely because the cultivator is a thief or someone who is cruel or having an illness. In this regards, as an option, the cultivator may hire a sub-contract to carry out the duty either by giving remuneration or fruit produce69. The reason is that the contract of al-Musqt is a binding contract whereby it cannot be nullified because of any hindrance. None of the party in the contract is entitled to nullify it without any prior agreement of both parties70. Moreover, jurists from Shfi school of the opinion that the contract of alMusqt does not nullify barely because there is an obstacle. The contract will be terminated when the period is ended. If the period of the contract ends after 15 years but the tree only

67 68 69 70

Charles Hamilton, op.cit., p.586; Ibn al-Hummm, op.cit., Vol.8, p.48. Ibid.

Ibn Rushd, op.cit., Vol.2, p.247; al-Dardr, op.cit., Vol.3, p.713. Ibid.; See also Ab al-Naj al-ajjw (1999), al-Iqn li lib al-Intif, Riy: Dr lim al-Kutub, p.478.

17

bear fruit after 10 years from that time, the cultivator is not entitled for his portion since the tree bear fruit only after the contract was terminated71. The contract of al-Musqt will be terminated when the cultivator was dead but the contract will not terminated with the dead of the owner. Before the period is expired, the cultivator should continue with his jobs and receive his portion. However, if the cultivators heir continues the jobs and then he dies before the period is ended, the contract will terminate since the heir is not the actual cultivator as been mentioned in that contract72. According to ulam from anbal school, the contract of al-Musqt is not a binding contract. As such, each party is entitled to revoke the contract when needed. If the revocation is made after the tree bears fruit, both parties are entitled to receive their portions based on the agreement of the contract. Besides, the cultivator is obliged to finish his jobs until the fruit can be plucked despite the fact that the period of the contract has expired73. Furthermore, this contract is not revoke in the case when the cultivator is dead since the continuation of the management jobs is upon his heir. If the heir is not interested in carrying on the jobs, the judge cannot force he to do so and he can hire someone else in completing the jobs by using properties left by the cultivator. If the cultivator did not leave any property, the judge is permitted to hire someone else using portion of the cultivator. In the case when the cultivator nullify the contract or run away before the tree bears fruit whilst jobs have been started, the cultivator is not entitled to get anything (remuneration). The reason is that by his action, he actually has removed his entitlement74. b) Al-Muzraah.

Muaf al-Khinn et.al., op.cit., Vol.3, p.31; Ab al-Naj al-ajjw, op.cit., pp.477-480; al-Sharbn alKhab, op.cit., Vol.2, p.331; al-Shrz, op.cit., Vol.1, p.391. 72 Ibid. 73 Ibn Qudmah, op.cit., Vol.5, pp.372-377; al-Buht, op.cit., Vol.3, pp.528-530. 74 Ibid.
71

18

Al-Muzraah (partnership in agriculture) literally means planting of something, from the root word of zaraa75. From the fiqh terminology, al-Muzraah refers to an agricultural compact between land possessor and cultivator76. This contract also means cede of land and seed to the cultivator while produce of the orchard is divided for both parties in the contract (landlord and cultivator)77. Yet, ulam from Mlik school of Islamic law defines al-Muzraah as contract of sharing in agriculture78. Imm al-Shfi defines this contract as a compact between landlord others in planting and taking care of crop, whereby the landlord provides the seeds and the fruit produce will be divided between them at agreed ratio 79. Moreover, jurists from anbal school refer al-Muzraah as a contract of submitting land to the cultivator and both parties are involved in the plantation project80. According to Majallah al-Akm al-Adlyyah, contract of al-Muzraah refers to a kind of partnership, where the land comes from one, and the work from the other, i.e., a partnership to cultivate, and divide the crops81. Most of the ulam permit the contract of al-Muzraah82. This view is justified by a adth narrated by Ibn Umar. Prophet Muammad (.a.w.) said to the effect83: The Prophet (.a.w.) made a deal with the people of Khaybar that they would have half the fruits and vegetation of the land they cultivated.
Ibn Manr, op.cit., Vol.5, p.3. Al-Ksn, op.cit., Vol.6, p.175; Ibn bidn, op.cit., Vol.5, p.193; Abd al-Raman al-Jazr, op.cit., Vol.3, p.2. 77 Ibn Qudmah, op.cit., Vol.5, p.581; Ab al-Naj al-ajjw, op.cit., p.475; Charles Hamilton, op.cit., p.579. 78 Al-Dardr, op.cit., Vol.3, p.372; Ibn Juzayy, op.cit., p.280; Abd al-Raman al-Jazr, op.cit., Vol.3, p.3. 79 Muaf al-Khinn et.al., op.cit., Vol.3, p.33; Abd al-Raman al-Jazr, op.cit., Vol.3, p.4; Imrn Umrn, op.cit., Vol.7, p.241. 80 Ibn Qudmah, op.cit., Vol.5, p.382; al-Buht, op.cit., Vol.3, p.523; Abd al-Raman al-Jazr, op.cit., Vol.3, p.3. 81 The Mejelle, op.cit., Article: 1431, p.237. 82 Ibn Qudmah, op.cit., Vol.5, p.581; Abd al-Raman al-Jazr, op.cit., Vol.3, p.2; Ab Ysuf, op.cit., p.96; al-Shawkn, op.cit., Vol.3, p.9. The legality of the contract of al-Muzraah was approved by Umar (r.a.), Al (r.a.), Ibn Abs, Ibn Masd and Saad Bin Mlik. See asan Ayb, op.cit., p.262. 83 a al-Bukhr, op.cit., Kitb al-arth wa al-Muzraah, adth No: 2329, p.374; a Muslim, op.cit., Kitb al-Musqt wa al-Muzraah, adth No: 3964, p.678.
75 76

19

According to jurists from anaf school of Islamic law, the essence for the contract of al-Muzraah is proposal (jb) and acceptance (Qabl)84. Landlord offers to the cultivator by saying I submit this land to you for sharing project. The cultivator replies by saying I accept your proposal or I like with your offer or any other words that show an acceptance for the compact. When these two essences exist, the contract is effective85. Similarly, if the owner of the land, says to the worker, i.e., to the cultivator, I have given you this land by way of al-Muzraah on the terms that you take such a share of the crops, and the cultivator says I have accepted or I have taken the land or if he says something evidencing his assent, or the cultivator says to the owner of land I will work by way of al-Muzraah in your land, and he assents, the contract of al-Muzraah is a concluded contract86. Yet, ulam from anbal school view that the contract of al-Muzraah does not requires any acceptance in the form of word expression but it is enough by the starting of relevant work by the cultivator as in the case of representative ( al-Waklah) contract and, it is valid with the word expression of hiring contract. Besides, this school also pointed out that the contract of al-Muzraah is not a binding contract as similar to other type of partnership contract87. The contract of al-Muzraah may be terminated either by the completion of the project or it may be terminated before the completion of the project as below: i) The Expiry of Period.

84 85

The Mejelle, op.cit., Article: 1432, p.237. Al-Ksn, op.cit., Vol.6, p.176; Abd al-Raman al-Jazr, op.cit., Vol.3, p.5. 86 The Mejelle, op.cit., Article: 1432, p.237. 87 Al-Buht, op.cit., Vol.3, p.528; Abd al-Raman al-Jazr, op.cit., Vol.3, p.15; Ibn Taymyyah, op.cit., Vol.30, p.111.

20

Contract of al-Muzraah will be terminated when the period of the contract ended. The ending of the contract happens when all the crop produce be divided corresponds with the agreement and the agreed conditions by both parties88. In the case when the period of the contract ended but the aim of the project still unattained (the tree still green and bears no fruit), the period of the contract should be prolonged until the tree bears fruit and ripe. This attempt tries to celebrate and satisfy both parties in the contract as much as it can be89. However, the cultivator should be imposed by the payment of land rental derived from the crop produce of the project, and it is calculated from the expiry date of the contract until the project produces crop. Nevertheless, all costs of plantation, taking care of and renting of the tree after the contract ends is being responsibility of both parties, based on agreed ratio. The reason is that the expiry of the contract not by itself will terminate the joint obligation of both parties since the contract is considered as a sharing property contract90. ii) One of the Parties in the Contract Has Deceased. The contract of al-Muzraah will be terminated when one of the parties in the contract was dead even though the cultivation job has been started or not, or the project has borne fruit or not91. In the case when the dead person was the landlord and the project is not yet producing anything thus, the cultivator or his heir still obliged to carry on with the job they has agreed. This is because the contract has placed the responsibility upon the cultivator to complete his duty from the beginning until the end of the contract92.

Al-Ksn, op.cit., Vol.6, p.184; Ibn bidn, op.cit., Vol.6, p.282; Abd al-Raman al-Jazr, op.cit., Vol.3, p.11; Charles Hamilton, op.cit., p.582. 89 Ibid.; Charles Hamilton, op.cit., p.583. 90 Ibid. 91 This view has been given by jurists from anaf and anbal schools. Nonetheless, according to Sh fi and Mlik schools, the contract of al-Muzraah will not terminate by the dead of one person in the contract. See al-Ksn, op.cit., Vol.6, p.184; Ibn bidn, op.cit., Vol.6, p.282; Ibn Qudmah, op.cit., Vol.5, p.568; Charles Hamilton, op.cit., p.582. 92 Al-Ksn, op.cit., Vol.6, p.184; Ibn bidn, op.cit., Vol.6, p.282; Ibn Qudmah, op.cit., Vol.5, p.568; Charles Hamilton, op.cit., p.582; The Mejelle, op.cit., Article: 1440, p.238.
88

21

The contract of al-Muzraah will be continued despite the fact that one of them was dead is based on the juristic preference concept. The tree that has been grown should be allowed to be grown since the contract is not yet accomplished and the cultivator is not obliged in this manner to pay for the renting of the land93. Yet, if the owner of the land dies, when the crop has appeared, the contract is dissolved at the end of that year. In the case when a man give away a piece of land to another person for a term of three years and in the first year, the crop has begun to grow but still unfit for reaping, the man die, the land in this case remains in the hand of the cultivator until the crop be fitted for reaping, and the produce is then divided according to the conditions of the compact94. iii) Termination by Proof. In the case when there is an annulment of the contract before the project even started hence, the contract will be terminated. Ulam from anaf school view that the availability of one party to provide seed does not mean that he will be participated in the joint project95. According to Mliks jurists, the contract of al-Muzraah is not binding unless the relevant jobs have been started. Therefore, contract that is not yet been started can be cancelled96. Yet, ulam from anaf school of fiqh pointed out that the contract that is being run could be cancelled by the existence of proof either from the cultivator side or from the landlord97. Among those proofs that can be accepted are as follow98: i) The landlord is incurred huge amount of debt whereby he must sell the land in order to settle his debt without having other sources of income. In this respect, the landlord is
93 94

Ibid. Charles Hamilton, op.cit., p.582. 95 Abd al-Raman al-Jazr, op.cit., Vol.3, p.11. 96 Ibid., p.15. 97 Ibid., p.12. 98 Al-Ksn, op.cit., Vol.6, p.183; Ibn bidn, op.cit., Vol.6, p.284.

22

permitted to sell his land and then cancel the contract with this reasonable proof. Otherwise, if this contract is allowed to be continued, it may bring harm to the landlord. The method of canceling the contract is by selling the land and afterwards cancels the contract99. The best way for the annulment of this contract is before the project is started, or after the tree bears fruit, or when the harvesting period is due. If the tree still green and bears no fruit or the harvesting period is still not due, this contract cannot be cancelled and the land cannot be sold. In other words, the annulment is only possible to be done after the crop reach at maturity and fully grown. The reason is that the sale of land will terminate cultivators entitlement and the expecting time until the period of harvesting is an entitlement of the creditor. Thus, the deferment of the sale is for fulfilling both parties interest100. Furthermore, scholars from anaf school added to this matter that in order to avoid the cultivator from incurring any further losses by the selling of the land, there are two situations that should be considered by both parties in the contract. Firstly, if the annulment is done after the land has been cleared and cultivated thus, the cultivator is not entitled to get anything as a replacement for it since all jobs done are not meant anything for the landlord. The contract is only significant when the partnership gives something in return that can be expected from the produce101. Secondly, if the project has been started in the half way, the landlord should not sell his land until the harvesting period is due. In this case, sale of land means canceling of cultivators entitlement whereby it is preferable to be adjourned because of the deferment of debt is more lighten in terms of its danger than cancellation of entitlement102. ii) The cultivator has specific proof such as bad illness that may hinder him from continuing the project or he is forced to go abroad for some unavoidable reasons or he has to
99

Charles Hamilton, op.cit., p.583.

100 101

Ibid. Ibid. 102 Ibid.

23

find another job for his survival. For all these reasons, the annulment of the contract is permissible without any interference by the court and in the absent of both parties consent.

c) Bay al-Salam.

The term Salam forms the irregular verbal noun of the fourth declension of the Arabic root Salima103, meaning to deliver up. The term means advance payment or forward buying 104. Bay al-Salam is also known as Bay al-Salaf and it is included under the category of sale (Bay)105. From the fiqh terminology, Bay al-Salam is the sale of a thing, which will be delivered to the purchaser on a future date. That future date must be set at the time of the contract. In other words, Bay al-Salam refers to a sale of an object, which is not available at the time of the conclusion of the sale, but will be delivered in the future or a fixed future date. The price is, however, to be paid immediately during the session of the contract106. Besides, scholars from Shfi and anbal schools of Islamic law define this contract as a contract of specific goods in liability and the price of the goods is received in the session of contract (Majlis al-Aqd)107. In this contract, the buyer is called Rab al-Salam, the seller is Muslam ilayh, the cash price is Ras al-Ml and the purchased commodity is termed as Muslam fh108.

Ibn Manr (2003), Lisn al-Arab, Riy: Dr lim al-Kutub, Vol.8, p.187. S.E.Rayner (1991), The Theory of Contracts in Islamic Law, London: Graham & Trotman Ltd., p.134. 105 Ibn Qudmah (1972), al-Mughn, Beirt: Dr al-Kitb al-Arab, Vol.4, p.312; Ab Bakr al-Jazir, op.cit., p.396; asan Ayb, op.cit., p.175; Muaf al-Khinn et.al., op.cit., Vol.3, p.51. 106 Abd al-Sam al-Mir (1975), Muqawumt al-Iqtid al-Islm, Riy: Maktabah Wahbah, p.103; alSarakhs, op.cit., Vol.12, p.124; al-Ksn, op.cit., Vol.5, p.201. 107 Sharbn al-Khab, op.cit., Vol.2, p.102; al-Buht, op.cit., Vol.3, p.276. 108 Muaf al-Khinn et.al., op.cit., Vol.3, p.53; Muhammad Taqi Usmani (2008), An Introduction to Islamic Finance, New Delhi: Idara Ishaat-E-Diniyat (P) Ltd., p.186; Islamic Finance News, Forward Sales & Manufacturing Contract, http://www.islamicfinancenews.com/, 12th November 2008.
103 104

24

The legality of Bay al-Salam contract is mentioned in the al-Qurn, al-adth as well as consensus of ulam (Ijm)109. In fact, the contract of Bay al-Salam is authorized and rendered legal by a particular passage in the al-Qurn and al-adth of Prophet Muammad (.a.w.). In the al-Qurn, there is a verse that discuss with regards of loan contract, as Allah (s.w.t.) says to the effect: O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Al-Baqarah (2):282. Ibn Abbs in elaborating this verse had said: I witness that the contract of alSalam (with a guarantee in the specific date) has been allowed by Allah (s.w.t.) in his revelation and has approved on it. He then recited the verse110. In a adth, narrated by Ibn Abbs, when Prophet Muammad (.a.w.) arrived at Madnah, the resident of Madnah at that time exercising the contract of al-Salam on fruits for the duration of one, two and three years. He (.a.w.) said111: Whoever wish to enter into a contract of Salam, he must effect the Salam according to the specified measure and the specified weight and the specified date of delivery.

Based on this adth, Bay al-Salam was allowed by the Holy Prophet (.a.w.) subject to certain conditions. The basic purpose of this sale was to meet the needs of the small
Ibn Qudmah, op.cit.,Vol.4, p.312; Muaf al-Khinn et.al., op.cit., Vol.3, pp.51-52; asan Ayb, op.cit., p.175; Charles Hamilton, op.cit., p.299. 110 Ibn Qudmah, op.cit., Vol.4, p.312; Muaf al-Khinn et.al., op.cit., Vol.3, p.51; Al-Ksn, op.cit., Vol.5, p.134; Ibn al-Hummm, op.cit., Vol.5, p.323. 111 a al-Bukhr, op.cit., Kitb al-Salam, adth No:2240-2241, p.357; a Muslim, op.cit., Kitb al-Musqt wa al-Muzraah, adth No:4118-4121, pp.701-702; Jmi al-Tirmidh, op.cit., Abwb alBuy, adth No:1311, p.318; Sunan al-Nas (1999), Riy: Dr al-Salm, Kitb al-Buy, adth No:4620, p.635; Sunan Ibn Mjah (1999), Riy: Dr al-Salm, Abwb al-Tijrt, adth No:2280, p.326; Sunan Ab Dud, op.cit., Kitb al-Ijrah, adth No:3463, p.501.
109

25

farmers who needed money to grow their crops and to feed their family upto the time of harvest. After the prohibition of rib, they could not take usurious loans. Hence, it was allowed for them to sell the agricultural products in advance112. The essence for Bay al-Salam contract is offer (jb) and acceptance (Qabl). According to anaf, Mlik and anbal schools of fiqh, the contract of Bay al-Salam can be made either in the expression of sale or Salam. For instance, one party says I book this item from you and being accepted by another party by saying I accept, or by any other expression such as I sell the goods to you at price of RM50 and be accepted by other party113. Muslim jurists from four schools of Islamic jurisprudence unanimously agreed that the contract of Bay al-Salam is valid when fulfilling six conditions below114: i) ii) iii) iv) v) vi) The attribute of the article is well defined. The type of the article is clearly mentioned. The quantity of the article is well recognized. The delivery time of the article is stated clearly. The price of the article is well known by both parties. The place for the delivery of the article is well understood.

4. Current Issue in Agriculture. There is no doubt that food, clothing and shelter are necessary for bare survival of man and his basic needs. The vision of an organized Islamic living is among others, the
112

Muhammad Taqi Usmani, op.cit., pp.186-187; Islamic Modes of Financing, http://www.islamicfinancing.org/, 30th November 2008; Islamic Finance News, Forward Sales & Manufacturing Contract, http://www.islamicfinancenews.com/, 12th November 2008. 113 Al-Ksn, op.cit., Vol.5, p.201. 114 Muaf al-Khinn et.al., op.cit., Vol.3, pp.53-58; Ibn al-Hummm, op.cit., Vol.5, pp.323-326; al-Ksn, op.cit., Vol.5, pp.201-208; Abd al-Sam al-Mir, op.cit., pp.103-104; Ibn bidn, op.cit., Vol.4, pp.212217; Ibn Rushd, op.cit., Vol.2, pp.199-201; Sharbn al-Khab, op.cit., Vol.2, pp.102-105; al-Sarakhs, op.cit., Vol.12, pp.124-126; Ibn Qudmah, op.cit., Vol.4, pp.312-315; asan Ayb, op.cit., pp.176-181.

26

guarantee to every individual of the fulfillment of his basic needs including food security 115. Food is a basic part of the existence of mankind. It plays important roles in social, cultural and religious life of most communities. In general, food is that which nourishes the body116. Food security has normally been defined in terms of three important elements namely, food availability, stability and accessibility. The first refers to the ability of a country to provide enough food for its ever-growing population. The second element concerns the capacity of the market to provide a stable supply of food. The third relates to the economic and physical ability of the population to obtain the food necessary for a healthy life117. Based on this definition, the state of insufficient of food security and supply are considered as the lack of accessibility to the adequate food. The inability of man to produce enough food causes the price of food in the market fluctuated. Consequently, the state of hunger and imbalance diet for the body will occur118. Food insecurity is usually more of a problem in developing countries than in developed countries as the latter often have in place the requisite mechanisms for food production, storage and distribution. Many Muslim countries face problems of inadequate food production, insufficient food supplies and inefficient food delivery system. Hence, they have to depend on massive imports from other countries to meet their basic food requirements119. Indeed, the preservation of ones own life and maintaining it in a state of efficiency is regarded to be a duty of the individual (Far al-An)120. Allah (s.w.t.) has stated clearly of the special human potential in the al-Qurn:
115

Nik Mustapha Nik Hassan (2006), The Concept of Food Security in Islam, in Shaikh Mohd Saifuddeen Shaikh Mohd Salleh et.al. (eds.), op.cit., p.18. 116 Mohd Ghazali Mohayidin and Ismail Abdul Latif (2006), Food Security in Malaysias Economic Development, in Shaikh Mohd Saifuddeen Shaikh Mohd Salleh et.al. (eds.), op.cit., p.27. 117 Ibid., p.27; Food and Agriculture Organization of the United Nations (1998), The Right to Food in Theory and Practice, Rome: FAO, p.32. 118 Hassan Fahmi Jumah (1988), Food Security in Islamic Countries: Opportunities and Integration, in Subhi Qasem (ed.), Food Security in the Muslim World, Jordan: The Islamic Academy of Sciences, p.218. See also Pakistan Wheat Management and The South Asian Hunger Bomb, http://taraqee.wordpress.com/2008/12/26/Pakistan-wheat-management-and-the-south-asian-hunger-bomb/, 15th April 2009. 119 Yusof Basiron et.al. (2006), Food Security in Fats and Oils for the Muslim World, in Shaikh Mohd Saifuddeen Shaikh Mohd Salleh et.al. (eds.), op.cit., p.102. 120 Nik Mustapha Nik Hassan, op.cit., p.20.

27

We have honored the sons of Adam, provided them with transport on land and sea, given them for sustenance things good and pure, and conferred on them special favors, above a great part of our creation. Srah Ban Isrl (17):70. From the above verse, provision made by the Creator is sufficient for all, coupled with His will that everyone should draw his sustenance from this provision and make it a socially obligatory duty in the fortunate to ensure the need fulfillment for such members of the society who are not able to do it themselves121. The task of ensuring food security and supply lies on everyone. Delivering safe food to the dinner table is the culmination of the work of many peoples. Producers, shippers, processors, distributors, handlers and many others perform actions on a daily basis that may affect the safety of our food. The challenge is for everyone to execute these individual actions as best as possible, so that the food served is free from physical hazards and dangerous levels of pathogenic microorganisms and dangerous chemicals122. Conclusion. In the final analysis, Islam has honored person who involves and seeking all livelihoods in the agriculture and regarded his efforts as a charity. It can also be concluded that Islam as an all-encompassing way of life has explained all aspects related to agriculture and land revival comprehensively from the very beginning of Islamic appearance. All these concepts and aspects of agriculture activities if apply accordingly based on sharah law will contribute greatly to the development of our ummah and nation. Bibliography.
121 122

Ibid., p.21. Shaikh Mohd Saifuddeen Shaikh Mohd Salleh (2006), Aspects of Food Safety from the Perspective of Islam, in Shaikh Mohd Saifuddeen Shaikh Mohd Salleh et.al. (eds.), op.cit., p.149.

28

Buht (1982), Kashshf al-Qin, Beirt: Dr al-Fikr. Dardr (t.t.) al-Shar al-Kabr, Qhirah: Mabaah al-Azharyyah. Ibn azm (1970) al-Muall, Qhirah: Mabaah al-Jumhryyah al-Arabyyah. Ibn al-Hummm (1995), Shar Fat al-Qadr, Beirt: Dr al-Kutub al-Ilmyyah.

Ibn Juzay (t.t.), al-Qawnn al-Fiqhyyah, Beirt: Dr al-Qalam. Ibn Manr (1994), Lisn al-Arab, Beirt: Dr al-dir. Ibn Arab (1978) Akm al-Qurn, Qhirah: Mabaah s al-alab. Ibn bidn (1979), shiyah Radd al-Mutr, Beirt: Dr al-Fikr. Ibn Qudmah (1999), al-Mughn, Riy: Dr lam al-Kutub. Ibn Rushd (1995), Bidyah al-Mujtahid wa Nihyah al-Muqtaid, Beirt: Dr alFikr. Ibn Taimyyah (1997), Fatw, Qhirah: Dr al-Waf. Jammat-e Islami Pakistan, Islamic Laws Regarding Profession and Earning, http://www.jamaat.org/islam, 30th November 2008. Jazir, Ab Bakr al- (1979), Minhj al-Muslim, Beirt: Dr al-Jl.

29

Jazr, Abd al-Raman al- (1990), Kitb al-Fiqh al al-Madhhib al-Arbaah, Beirt: Dr al-Kutub al-Ilmyyah. Ksn, al (1998), Badi al-ani, Beirt: Dr Iy al-Turth al-Arab. Khinn, Muaff al-, et.al. (1998), al-Fiqh Manhaj al al-Madhhab al-Imm alShfi, Damshiq: Dr al-Qalam. M. Umer Chapra (1992), Islam and the Economic Challenge, Leicester: The Islamic Foundation. Maydn, al- (1992), al-Lubb, Qhirah: Mabaah Subayh. Muhammad Akram Khan (1992), Economic Teachings of Prophet Muhammad, Delhi: Oriental Publications. Muslim (1977), a Muslim, Riy: Dr al-Salam. Nik Mustapha Nik Hassan (2006), The Concept of Food Security in Islam, in Shaikh Mohd Saifuddeen Shaikh Mohd Salleh et.al. (eds.), Food and Technological Progress: An Islamic Perspective, Kuala Lumpur: MPH Group Printing (M) Sdn. Bhd. Sarakhsi, al- (2001), al-Mabs, Beirt: Dr al-Kutub al-Ilmyyah. Sayu, al- (1998), al-Ashbh wa al-Nair, Beirt: Dr al-Kitb al-Arab. Sbiq, al-Sayyd (1994), Fiqh al-Sunnah, Beirt: Dr al-Kitb al-Arab. Sharbn al-Khab (1958), Mughn al-Mutj, Qhirah: Mabaah Muaff alBb al-alab. 30

Shfi, al- (1994), al-Umm, Beirt: Dr al-Kutub al-Ilmyyah. Shrz, al- (1976) al-Muhadhdhab f Fiqh al-Imm al-Shfi, Damshiq: Dr alQalam. Sunan Ibn Mjah (1952), Qhirah: Dr Iy al-Kutub al-Arabyyah. Tirmdh (1999), Jmi al-Tirmdh, Riy: Dr al-Salam. Yusuf al-Qaradawi (1960), The Lawful and the Prohibited in Islam, Indianapolis: American Trust Publications. Zaydn, Abd al-Karm (2001), al-Madkhal li Dirsah al-Sharah alIslmyyah, Beirt: Muassasah al-Rislah. Zuail, Wahbah al- (1985), Fiqh al-Islm wa Adillatuh, Damshiq: Dr al-Fikr.

31