and lands of Kbcebir ,-2.n& enjoy one half of the fruits and grain produced
from them, and that they fhould give the other half to him.
Befides, a compadl of cultivation is, in fadt, a compact of partnerfhip
in regard to flock and labour, in, this way, that one of the parties being
the proprietor of the ground, and the other the tiller of it, the
produdl is between them.— It is therefore valid from its analogy to a
contract of Mozdrlbat; for contrails of Mozdribat are valid on a principle
of conveniency; fince, as it often happens that there are men pof-
feffed of property who have'not a capacity for trade or bufinefs, and
again, that there are others-endowed with (l'uch a capacity who have
no property, it is therefore convenient that a contrail of Mozdribat
be eftablifhed betwixt them, by which means the defires of both are
accomplifhed;' and as the fame reafon fubfifts in the cafe of compadis
o f cultivation, they are therefore valid as well as compadis of Mozdribat.
It is otherwife where one man gives to another goats, fowls., or
filk worms, to take care of, on condition that he who thus takes care of
them fhall have one half of the produce and the proprietor the . Other
ha lf; for this is difapproved ; becaufe as the care and management of
the keeper has no effedl in creating the produce,, partnerfhip is therefore
not fuflSciehtly eftablifhed in that infiance. ' T h e arguments-of
Haneefa on this point are threefold. F irst, T h e prophet has ex-
prefsly prohibited Mokhabera, which in the dialed of Medina has the
fame fignification as Mozarea, namely, compadis of cultivation.—
Secon d l y, T o make a compadl o f cultivation is to hire a labourer
for a part of that thing 'which is produced by his labour.: it is therefore,
in effedl, a Kafeiz- fehdn, and'asthat is unlawful, fo like wife is
this.— ( ‘Tehdn frgnifies a'miller or grinder of wheat, and Kafee% a:cup‘
ufed.for meafuririg i.■ ■ 'Ktofeez therefore means to hire a perfon to
grind wheat into flour, in confideration of a meafure of the flour‘for
his hire.)— T h irdl y , T h e rate of hire, in fuch cafes, is uncertain,
when any produce is reaped; or it:is annihilated when no produce is
reaped; and in either cafe the hire is invalid. With refpedt, moreover,
to the tranfadlion which palled betwixt the prophet and the;
people
people of Kheebir, it was not a compadl of cultivation, but was rather
in the nature of a tributary revenue, allowed to be paid in kind, as an
indulgence or compromife. As compadis of cultivation are thus
deemed invalid by Haneefa, it follows that, (agreeably to his dodtrine,)
where the labourer waters, tills, and fows the land, and it neverthe-
lefs proves unprodudtive, he is entitled to the cuftomary rate of hire
adpquate to his labour, fince (according to Haneefa) the compadl of
cultivation is, in effedl, as an invalid hire. This is where the feed
fown is furnifhed by the proprietor of the ground ; for i f the feed be
furnifhed by the cultivator, he is liable for the rent of the land at the
cuftomary rate: — and if, in either cafe, any produce be reaped, it belongs
to him who fupplied the feed, fince it is an increafe from his
property;— and the other, i f he be the cultivator, is entitled to a
rate of hire adequate to his labour,— or, i f he be the proprietor of
the ground, to an adequate rent for his ground. In the prefent
times, however, the adjudication o f the courts is given according to
the dodtrine o f the two difciples, both becaufe compadis of cultivation
are convenient to mankind, and alfo becaufe they have become every
where fcuftomary.
T h e following conditions are eflential to the validity of a compadl
of cultivation. I. That the ground be capable of cultivation,
for otherwife the objedt of the compadl cannot be accomplifhed.—
II. That the proprietor o f the ground and the manager be both qualified
to make fuch a compadl; that is to fay, that they be both in
their right reafon, of age, and converfant in fuch compadis; for un-
lefs the parties be fo qualified no compadl whatever is valid. III. That
the period or term be exprelied; for fuch a compadl is in the nature
of an agreement, either for the ufe of the ground, (as when the cultivator
fupplies the feed,) or, for the ufe of the labour, (as when the
feed is fupplied by the proprietor of the ground;) and the determinate
ufe of either can be afcertained only by the period. IV . That
it be exprefsly ftipulatedby whom the feed is to be fupplied, in order
V o l . IV . G that
They require
that the
ground be capable
o f cultivation,
that the parties
be duly
qualified,
that the term
o f their continuance
be
exprefled,
that the party
be fpecified
who is to fup»
ply the feed.