Explanation of the author's statement: "And the tenth is obligatory upon the lessee of the land, not its owner."
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The Shaykh : He said, "And the tenth is obligatory upon the lessee of the land, not its owner". What is the obligatory tenth? That is, the zakah of fruits and the zakah of grains are obligatory upon the lessee, not the owner. If the author had said, "The zakah of fruits and grains is obligatory upon the lessee, not the owner," it would have been more general than his statement that "the tenth is obligatory." This is because the obligatory amount may be the tenth, or it may be half of the tenth. In any case, this is his intended meaning. That is, upon whom is the zakah of grains obligatory? Upon the owner of the land or upon the lessee? The answer is: upon the lessee. This is because the lessee is the owner of the grains, and the owner of the land is entitled only to the rent. Likewise, the lessee is the owner of the fruits, and the owner of the land is entitled only to the rent. However, someone might ask: How can one lease fruits? Or how can one lease palm trees? How is that possible? Is it possible to lease palm trees?
The questioner : ... .
The Shaykh : Definitively?
The questioner : ... .
The Shaykh : No, not definitively. The school of thought, which is the opinion of the majority of scholars, is that palm trees cannot be leased. That is, it is not permissible for me to come to the owner of an orchard full of palm trees and say, "Lease me these palm trees for ten years, for example." This is not permissible. Why? Because the fruit does not exist. The fruit is currently non-existent, and it is unknown whether the fruit that emerges will be equal to the rent, less than it, or more than it. And since the Prophet (peace and blessings be upon him) prohibited the sale of fruits until their goodness becomes apparent, this is even more applicable in this case, because this is before the fruit has emerged, and thus there is uncertainty involved. However, the Shaykh al-Islam (may Allah have mercy on him) insisted on validating this contract. He said that leasing the trees of orchards is like leasing their land. Just as you lease this land from its owner and cultivate it, and your crop may be much more than the rent or less, so too with the palm trees. The palm trees are made the principal, just as the land is made the principal in sharecropping. He said that this is what is established from 'Umar (may Allah be pleased with him) when he made the garden of Asid ibn Hudhayr, who was burdened with debts, responsible for his debts by leasing his orchard to whoever would lease it for a specified number of years, with the rent paid in advance to settle the debt. He said that 'Umar did this while the Companions were present, and that there is no difference between leasing palm trees and leasing land. He stated that this is more decisive in ending the dispute between whom? Between the lessee and the owner of the land. This is because it is permissible for the owner of the palm trees to enter into a sharecropping agreement with this worker for a portion of the fruit, and this may lead to a dispute. However, if the rent is a fixed amount, the owner of the palm trees knows his share and takes it, and the lessee knows that the entire fruit is his, with no one disputing it, and he can dispose of it completely. This is what has become the practice among people today. The practice among people has become that it is valid to lease palm trees for a known rent for a period of five years, ten years, or whatever they agree upon. Is that clear? So, if we say that leasing palm trees is not valid, then the author's statement, "The tenth is obligatory upon the lessee of the land", is to be understood in the case of crops. As for fruits, it is not conceivable, because according to the school of thought, it is not valid to lease palm trees for their fruits. Yes?
The questioner : Which is the stronger position?
The Shaykh : The stronger opinion is what the Shaykh al-Islam (may Allah have mercy on him) held. In reality, here in al-Qasim, when this ruling became known, people were relieved. They began leasing orchards. For example, one would say, "I have leased the orchard from you for one hundred thousand," giving him the one hundred thousand, and the other takes the fruit. Ibn 'Aqil (may Allah have mercy on him) detailed the issue, saying that if most of the land is empty and not palm trees, it is permissible to consider the majority. Do you understand?
The questioner : Yes.
The Shaykh : Good, because leasing land is permissible, the lesser is attached to the greater. However, the path according to the school of thought is to enter into a sharecropping agreement regarding the palm trees and lease the land. How do you enter into a sharecropping agreement regarding the palm trees? That is, you say, "I have entered into a sharecropping agreement with you on these palm trees for one-third of the fruit." Yes?
The questioner : ... .
The Shaykh : Definitively?
The questioner : ... .
The Shaykh : No, not definitively. The school of thought, which is the opinion of the majority of scholars, is that palm trees cannot be leased. That is, it is not permissible for me to come to the owner of an orchard full of palm trees and say, "Lease me these palm trees for ten years, for example." This is not permissible. Why? Because the fruit does not exist. The fruit is currently non-existent, and it is unknown whether the fruit that emerges will be equal to the rent, less than it, or more than it. And since the Prophet (peace and blessings be upon him) prohibited the sale of fruits until their goodness becomes apparent, this is even more applicable in this case, because this is before the fruit has emerged, and thus there is uncertainty involved. However, the Shaykh al-Islam (may Allah have mercy on him) insisted on validating this contract. He said that leasing the trees of orchards is like leasing their land. Just as you lease this land from its owner and cultivate it, and your crop may be much more than the rent or less, so too with the palm trees. The palm trees are made the principal, just as the land is made the principal in sharecropping. He said that this is what is established from 'Umar (may Allah be pleased with him) when he made the garden of Asid ibn Hudhayr, who was burdened with debts, responsible for his debts by leasing his orchard to whoever would lease it for a specified number of years, with the rent paid in advance to settle the debt. He said that 'Umar did this while the Companions were present, and that there is no difference between leasing palm trees and leasing land. He stated that this is more decisive in ending the dispute between whom? Between the lessee and the owner of the land. This is because it is permissible for the owner of the palm trees to enter into a sharecropping agreement with this worker for a portion of the fruit, and this may lead to a dispute. However, if the rent is a fixed amount, the owner of the palm trees knows his share and takes it, and the lessee knows that the entire fruit is his, with no one disputing it, and he can dispose of it completely. This is what has become the practice among people today. The practice among people has become that it is valid to lease palm trees for a known rent for a period of five years, ten years, or whatever they agree upon. Is that clear? So, if we say that leasing palm trees is not valid, then the author's statement, "The tenth is obligatory upon the lessee of the land", is to be understood in the case of crops. As for fruits, it is not conceivable, because according to the school of thought, it is not valid to lease palm trees for their fruits. Yes?
The questioner : Which is the stronger position?
The Shaykh : The stronger opinion is what the Shaykh al-Islam (may Allah have mercy on him) held. In reality, here in al-Qasim, when this ruling became known, people were relieved. They began leasing orchards. For example, one would say, "I have leased the orchard from you for one hundred thousand," giving him the one hundred thousand, and the other takes the fruit. Ibn 'Aqil (may Allah have mercy on him) detailed the issue, saying that if most of the land is empty and not palm trees, it is permissible to consider the majority. Do you understand?
The questioner : Yes.
The Shaykh : Good, because leasing land is permissible, the lesser is attached to the greater. However, the path according to the school of thought is to enter into a sharecropping agreement regarding the palm trees and lease the land. How do you enter into a sharecropping agreement regarding the palm trees? That is, you say, "I have entered into a sharecropping agreement with you on these palm trees for one-third of the fruit." Yes?