■ 1L
that the ftraw is the produce. (The Shiekhs of Balkh * are of opinion
that the ftraw ftiould alfo be divided equally betwixt the parties;
becaufe fuch is the ufual practice whetj no mention is made of the
ftraw; and alfo becaufe as the ftraw is fubordinate to the grain, it
fhould, as well as the grain, be held in partnerfhip.)
I
and it may be. If it be ftipulated that the grain fhall be divided equally, and that
go to him; the ftraw fhall go to him who fupplied the feed, it is valid; becaufe
but it cannot this is confiftent with the fpirit of compacts of cultivation. If, on
be ftipulated § ■ COI1trarv, it be ftipulated that the ftraw fhall go to him who did
to go to the J 7 r 0 .
other. not fupply the feed, it is invalid, as fuch a Itipulation defeats the
partnerfhip in cafe nothing but ftraw fhould be produced. The difference
betwixt thefe two cafes is, that the perfon who did not. fupply
the feed has no other claim to the ftraw than what he acquires
from the ftipulation, whereas he who fupplied the feed has a right to
the ftraw in confequence of its being the produce of his feed; and
whether the ftraw be ftipulated to him or not his right to it holds
equally good.
The produce W h e n a compact of cultivation is valid, the produce of the ground
patST'ac- is the joint property of the parties, in fuch proportions as they may
cording to ftave fHpulated, fuch as an half, a third, or the like.— If, on the
and i f nothing contrary, nothing be produced, the cultivator is not entitled to any
the:cultivator thing ; for he has a right only to a fhare of what may be produced,
has no claim. j g ot]lerwife where the compact of cultivation is invalid; for in that
cafe an adequate hire falls due upon the perfon [of one of the parties,]
not upon the produce; and the perfon is not abfolved by a failure of
produce..
w h ere the W hen a compadt of cultivation proves invalid, the crop belongs
provestriva to him who furnifhed the feed, it being the produce of his property.
* Balkh is a city in Turan.
Befides,
Befides, the other has no right therein except what he acquires in
virtue of exprefs conditions in the compadt; and where that proves
invalid, it follows of courfe that the entire crop belongs to the perfon
who fupplied the feed.
I f the feed be fupplied by the proprietor of the ground, the cultivator
is entitled to a fuitable hire for his labour, provided it do not exceed
what he would have reteived in confequence of the conditions
of the compadt; becaufe, in fuhfcribing to thefe conditions, he con-
fented to relinquifh his right to the excefs. This is the law, as laid
down by the two elders. Mohammed maintains that he is entitled to
a fuitable hire, to whatever amount; for as the mafter of the land has
obtained his fervices in confequence of an invalid compadt, he is of
courfe liable forth t value thereof, fervice not. being of the clafs of
f imi l a r s a s has been fully explained in treating of Hire,
If the feed be fupplied by the cultivator, the proprietor of the
ground is to receive a fuitable rent for his ground, whether there be
any produce or not. The reafon of this is, that as the cultivator has
acquired the ufe of the ground in confequence of an invalid compadt,
he ought therefore to reftore the ufe itfelf; but that being impoffible,
and there being nojlmilar in which he might make a return, it is
therefore, incumbent that he make a return in the value to an amount
not exceeding what the other would have received in virtue of the
ftipulations of the compadt. This is the dodtrine of the two elders,
Mohamrnedds of opinion .that he muft pay an equivalent whatever it
may be.
If the cattle be provided by the proprietor of the ground, lo as
that the compadt, (according to the Zahir RaVidyet,') becomes invalid,
the cultivator is in that cafe liable for a fuitable hire on account
both o f the cattle and the ground;— and this is certainly juft ; lince
the cattle are equally included in the contradt of hire, (the compadt
of
lid, the produce
goes to
him who fur-
nifties the
feed; and the
other party,
i f he be the
cultivator,
gets wages
(not exceeding
his right
under the
compadt j)
or, i f the proprietor
o f the
ground, an
adequate
rent,
(and alfo an
adequate hire
for the cattle,
i f fupplied by
him.)