The Book Of Irrigation (Musaqat)

The Arabic word MUSAQAT means an agreement between two parties for irrigating fruit bearing trees and looking after them for a certain time in exchange for a certain portion of their fruits.

Certain Conditions In This Matter

(a) There must be an offer and acceptance by the parties, which can be expressed by any form of communication that would indicate the intention of the parties, by words, deeds etc. It is not necessary to express such intention by means of Arabic words nor it is necessary for certain terms in the contract to have the past tense mode and form. (b) The parties must be mature, free of mental illness and free from compulsion and duress, but freedom of one's activities from the control of court; a condition called 'Hijr' or suffering from mental-illness may only exist on the part of the owner, not the worker. (c) The roots of trees must belong to the party completely or only their benefits or at least he must be authorized to deal with it as a supervisor or agent.

(d) The trees must be known and specified.

(e) The length of time of work must be specified either considering the harvest as the end of such time or in terms of months and years within which time the fruits could be picked up, but if the time is less than this the contract is void. (f) The share of each party must be specified and that such share be a certain ratio of the whole amount of produce, thus, it is not lawful to assign the fruits of a certain tree as the worker's share. However, it is lawful to assign a certain amount like one ton besides the share According to the common ration of the whole product when they know that there will be some more fruits left. (g) Specifying the responsibilities of the parties, common practice and other strong indications, which show what each and every one's responsibilities are, would also be enough for specifying the responsibilities. (h) The irrigation must be made before the fruits appear or after it before the time of harvest if the trees need irrigation but if they do not need irrigation the validity of contract on picking up the fruits or watching them is not free from objection. (I) The contract must be based on such plants that have permanent roots but if they are like watermelons or egg-plants etc., apparently an irrigation contract cannot materialize and considering such a case an independent contract and valid is open to objection, but precaution should be observed. Irrigation contract for fruitless trees is not valid. Even the validity of such a contract about the trees that are used for their leaves also is not free from objection.

CR (507) In an irrigation contract for trees that do not need water because of rain or their roots receive water from the soil, if they need other works, is valid.

CR (508) It is lawful to agree to assign a certain amount of gold or silver for one party in addition to his specified share, but is it necessary to pay such amounts if share of fruits is not delivered there are two or several views about it according to a more clear one of these views it is necessary, regardless, such condition of paying gold or silver is in favor of the owner or the worker, or whether no fruits at all appear or are destroyed after they appear.

CR (509) It is not an offense if owners are more than one person, the worker is only one person, thus, partners, for example, can have one person to irrigate their trees, the same CR applies to the reverse of this case. i.e. one owner two workers, or that on both sides of the contract there are more than one person as owners or workers.

CR (510) Paying the taxes of the land is the responsibility of the owner as well as building walls around the trees or digging wells etc., which are not related directly to the growth of fruits

CR (511) The worker becomes the owner of the share assigned to him, if the contract is free of conditions and limitations, from the time fruits appear, if the contract takes place after the fruits appear, he becomes the owner from the time of the contract.

CR (512) According to a more clear reason a contract which would say that 'A' plants certain trees on "B's" land so that they share such trees equally or one party will have more or less, such contract is not valid. If such a thing happens the trees belong to the owner of land and the worker would deserve fair market value payment for his labor if the other party of the contract is the owner and if the worker himself is the party of the contract the owner demands from him for the fair market value rent of the land. He cannot force the owner of land to let such trees stay therein even for a certain amount of rent. It is necessary for him to cut them down if the owner does not agree and he also must repair and fill-up the ground because of damage etc., and the owner cannot cut such trees and if he did and the trees are damaged, he is responsible for the damage.

CR (513) If in the irrigating agreement and contract all the product is said to go to owner such contract is void despite this the whole product belongs to him and the worker cannot demand any payment because he has started to work free, but if the invalidity of contract is because of some other reasons, it is necessary for the owner to pay fair market value payment to worker.

CR (514) The irrigation contract is binding; it cannot be revoked without mutual agreement or without an effective right in favor of one party to do like violation of conditions set in the contract or other reasons of invalidity in the contract.

CR (515) If the owner dies his heirs replace him; the irrigation contract stands effective. If the worker dies his heirs replace him, provided, his working in person is not required by the contract otherwise, the contract becomes void. The heirs of worker do not work or arrange for it; the authorities of sharia hire workers for the job and is paid from the deceased property and the product is divided between owner and heirs of the worker.

CR (516) An irrigation contract with no conditions and limitations against it requires that works needed for the up-keep of the trees tools and watering have to be provided by both parties in equal amounts, unless there are some indications telling otherwise and show certain things as a certain party's responsibilities. For certain expenses or works to be a certain party's responsibility there must be a provision in the contract as a direct indication or indirect denotation. In the absence of such factors the parties have to share the expenses in equal measure.

CR (517) If the worker disregards some of the conditions and does not do certain works, the owner can force him to do his part; also he can revoke the contract, even if the time for the work not done is gone, the owner can revoke the contract because of the disregard of a condition by the worker he, however, instead of revoking the contract cannot demand compensation for the work not done in addition to his share of produce according to a more clear and strong reason.

CR (518) In the irrigation contract it is not necessary that worker himself do the job, if no such condition is set in the contract he can hire someone for some of his work or all of it and make the payment, and just as well he can set a condition for owner to pay for some of the work.

CR (519) If a garden for the irrigation of which a contract is made contains various trees such as Palm trees, Apples and Grapes etc., it is not necessary to exactly know how many of each kind of trees are there in actual details but a general knowledge which removes deceitful losses is enough or even if it may not do so still such general idea is enough.

CR (520) In the above case it does not matter whether the shares are taken out of the whole produce like half of the whole for owner and half for the worker or different ratios out of different kinds of fruits like half out of grapes and one third out of apples and one fourth out of dates.

CR (521) The irrigation contract, it is said, can also be valid if the shares because of certain conditions are assigned to be of different quantities like one half of the trees are watered from a well and one third watered from brooks or river and this much of uncertainty does not affect the validity of contract, but according to a more clear reason it is not valid as mentioned in the rule of renting.

CR (522) If some fruits are destroyed; would there be a reduction proportionate to the ratio of destroyed fruits in the amount of gold or silver that the parties may have agreed to be for one of the parties in addition to his specified share of fruits or not, there are two views about it according to a strong view there would be no reduction.

CR (523) If in accordance with certain legal (shar’i) means it is discovered that the roots of fruit plants were usurped, the contract is valid only if the owner approves it, otherwise, it is void and the whole produce belongs to owner and the worker receives the fair market value payment to be paid by the usurper.

CR (524) If the discovery in the above rule is made only after the fruits are divided and consumed, the owner demands from the usurper only for compensation or ask both parties of the contract to pay each proportionate to his share but he cannot ask the worker for the whole amount of compensation.

CR (525) Both parties of irrigation contract must pay Zakat if each one's share is more or equal to the standard amount for which Zakat is payable, if the contract is made before Zakat becomes due, otherwise, only the owner pays Zakat.

CR (526) If a difference arises between the owner and worker about whether one party was supposed to do a certain job or not, the words of one who denies the existence of such condition is accepted.

CR (527) If owner and worker differ about validity or invalidity of contract, the words of one whom speaks of the validity of contract are accepted.