The Book of Selling and

Commercial Transactions

Reviving Barren Lands

& Per-Job Wage

إِحْيَاءِ الْمَوَاتِ

Glossary

Reviving Barren Land ( Iḥyâ’ al-Mawât )

This is about wasteland that has no known owner. Whoever revives it owns ⁹³³it, according to the hadith of the Prophet (SA), “Whoever revives barren land shall become the owner of the land.” ⁹³⁴ Revival of a land means preparing it for the desired activity such as enclosing it, ⁹³⁵ conveying water to it in order to cultivate it, and/or removing trees and stones that prevent its cultivation.

وَهِيَ الأَرْضُ الدَّاثِرَةُ الَّتِيْ لاَ يُعْرَفُ لَهَا مَالِكٌ، فَمَنْ أَحْيَاهَا مَلَكَهَا؛ لِقَوْلِ رَسُوْلِ اللهِ : "مَنْ أَحْيَا أَرْضاً مَيْتَةً فَهِيَ لَهُ." وَإِحْيَاؤُهَا عِمَارَتُهَا بِمَا تَتَهَيَّأُ بِهِ لِمَا يُرَادُ مِنْهَا، كَالتَّحْوِيْطِ عَلَيْهَا، وَسَوْقِ الْمَاءِ إِلَيْهَا إِذَا أَرَادَهَا لِلزَّرْعِ، وْقَلْعِ أَشْجَارِهَا و أَحْجَارِهَا الْمَانِعَةِ مِنْ غَرْسِهَا وَزَرْعِهَا.

When someone digs out a well and reaches water, he or she becomes the owner of a distance of 50 cubits (dhirâ‘; one dhirâ is about 48 centimeters) from all sides of the well if it is re-dug. ⁹³⁶ As for a new well, the distance is 25 cubits if it is newly dug. ⁹³⁷

وَإِنْ حَفَرَ فِيْهَا بِئْرًا، فَوَصَلَ إِلَى الْمَاءِ، مَلَكَ حَرِيْمَهُ، وَهُوَ خَمْسُوْنَ ذِرَاعًا مِنْ كُلِّ جَانِبٍ، إِنْ كَانَتْ عَادِيَةً، وَحَرِيْمُ الْبِئْرِ الْبَدِيْءِ خَمْسَةٌ وَعِشْرُوْنَ

933. In general, this is a matter of consensus, although scholars disagreed on some details.

The wisdom behind this legislation is clear:

· It encourages people to spread out and revitalize the lands. · It encourages entrepreneurship and economic growth.

· It rewards hard work.

· It creates opportunities for those who were not handed down wealth from their ancestors.
(A) + (+S): There is no need for the ruler’s permission (idhn al-Imâm). (-M) agreed with them concerning land that is far from inhabited areas. (-H): The ruler’s permission is needed. Although the hadith is absolute, most contemporary laws agree with Imam Abu Ḥaneefah’s position, in consideration of public interest and to block the means of abusing the law. The hadith should be understood as a command to rulers to grant lands to those who revive them, whenever possible.

934. (A, T. T: S)

935. Samurah narrated that the Prophet (SA) said:

“Whoever encloses land with a wall becomes the owner.” (A, D; Ibn al-Jârood: S)

مَنْ أَحَاطَ حَائِطًا عَلَى أَرْضٍ فَهِيَ لَهُ

936. The word used here in Arabic for ‘re-dug’ is ‘âdiyah, which is in reference to the tribe of ‘Âd. What is meant is an old well that needs to be re-dug.

ذِرَاعًا.

937. This is reported by Abu Dâwood in his al-Marâseel from Ibn al-Musayyib. However, since it is mursal (‘interrupted’; the Companion between Ibn al-Musayyib and the Prophet [SA] is not mentioned), it is considered weak (ḍa‘eef) by most scholars of Hadith. There are a few other hadiths about this matter. One designates forty cubits around the well, and another designates the length of the draw rope. All of the hadiths are controversial in authenticity. The applicable ruling in our times is that the distance should be sufficient for the drawing of water from the well and its utilization.

Chapter on Per-Job Wages (Ja‘âlah) ⁹³⁸

بَابُ الْجَعَالَةِ

[An example of per-job wages is] when someone says, “I will pay such-and-such to whoever finds me my lost item,” ⁹³⁹ or, “I will pay such-and-such to whoever builds me this wall.” Anyone who accomplishes the task will be eligible for the wage. This is supported by what Abu Sa‘eed al-Khudri narrated about the chief of a tribe who was stung [or

وَهِيَ أَنْ يَقُوْلَ: مَنْ رَدَّ لُقَطَتِيْ، أَوْ ضَالَّتِيْ، أَوْ بَنَى لِيْ هَذَا الْحَائِطَ، فَلَهُ كَذَا، فَمَنْ فَعَلَ ذٰلِكَ، اسْتَحَقَّ الْجُعْلَ؛ لِمَا رَوَى أَبُوْ سَعِيْدٍ : " أَنَّ قَوْمًا لُدِغَ رَجُلٌ مِنْهُمْ، فَأَتَوْا

938. Ja‘âlah is a form of ijârah (conventional hiring), but with an unknown duration and an unknown amount of work needed to complete the job. The worker is not necessarily specified. The worker does not deserve any compensation unless he or she finishes the required job.
The other major difference between ja‘alah and ijârah is that ijârah is a binding (wâjib) contract, whereas ja‘alah is a non-binding (jâ’iz) contract. In non-binding contracts, either party is allowed to withdraw from the contract without the agreement of the other.
If the worker withdraws, he or she deserves nothing. If the one who commissioned the job withdraws after the worker has already started the job, the worker is entitled to the ordinary compensation (ajr al-mithl) for that job. If the contract is invalidated, the worker gets ajr al-mithl for any work that was finished. (al-Mubdi‘ by Ibn Mufliḥ)
The fiqh maxim invoked here is:

A contract that results in entitlement to a specified compensation when valid will result in entitlement to the ordinary compensation (ajr al-mithl) when invalid. (al-Mubdi‘ by Ibn Mufliḥ)

قَد يَجِبُ المُسَمَّى في صَحِيحِهِ، فَوَجَبَت أُجْرَةُ المِثلِ في فاسِدِهِ.

The wisdom behind the legislation of ja‘âlah: Sometimes it is very difficult to determine what it takes to finish a certain job. Also, it may be better for the employer to specify a compensation for the completed job; this will motivate the worker to complete the job and avoid procrastination. All the madh-habs approve of ja‘âlah except the Ḥanafis, who consider it to involve excessive risk taking (gharar) because the amount of work needed to complete the job is unknown.

939. A certain fixed amount is what is mentioned here. (a) allowed a percentage of what is found or caught, as well. Can he or she combine the job and a time period? For example, “If you make me a suit within a week, I will pay you 100 dollars.” (A): Yes. (-M, -S) ¹ The Ḥanbali position could be used to justify a penalty for delay. Note that combining the job and time period would not be acceptable in ijârah.

bitten, by a snake or scorpion]. (After refusing to host some Companions of the Prophet [SA] who were on a journey, these tribe members) asked the Companions, “Can any of you treat him with ruqyah?” ⁹⁴⁰ The Companions replied, “Not unless you pay us.” ⁹⁴¹ So they agreed to pay them a flock of sheep. One of (the Companions) started reciting Soorat al-Fâtiḥah (the first chapter of the Qur’an) and gently blowing his saliva (onto the sting wound) until he (the patient) was cured. They took the sheep and went, and they asked the Prophet (SA) about that (whether taking payment was lawful). He responded, “How did you know it (al-Fâtiḥah) is in fact a ruqyah? Take (what you were given), and give me a share of it.” ⁹⁴²

أَصْحَابَ النَّبِيِّ ، فَقَالُوْا: هَلْ فِيْكُمْ مِنْ رَاقٍ، فَقَالُوْا: لاَ، حَتَّى تَجْعَلُوْا لَنَا شَيْئًا، فَجَعَلُوْا لَهُمْ قَطِيْعًا مِنَ الْغَنَمِ. قَالَ: فَجَعَلَ رَجُلٍ مِنْهُمْ يَقْرَأُ بِفَاتِحَةِ الْكِتَابِ، وَيَرْقِيْ، وَيَتْفُلُ حَتَّى بَرَأَ، فَأَخَذُوْا الْغَنَمَ، وَسَأَلُوْا عَنْ ذٰلِكَ النَّبِيَّ ، فَقَالَ: وَمَا يُدْرِيْكُمْ أَنَّهَا رُقْيَةٌ؟ خُذُوْا وَاضْرِبُوْا لِيْ مَعَكُمْ بِسَهْمٍ."

Anyone who happens to find the lost item before knowing of the wage (compensation) would not deserve it. ⁹⁴³

وَلَوْ الْتَقَطَ اللُّقَطَةَ قَبْلَ أَنْ يَبْلُغَهُ الْجُعْلُ، لَمْ يَسْتَحِقَّهُ.

940. Ruqyah is a method of spiritual-medical healing which uses the recitation of the Qur’an and/or du‘â’ (supplication; invocation).

941. Refusing to host wayfarers was considered very offensive in Arab culture. Thus, the Companions, who otherwise would likely have performed the ruqyah without compensation, asked for payment.

942. (Ag). The Prophet (SA) asked for a share to further confirm the wholesomeness of such provisions.

An example of a reward payment is also mentioned in the Qur’an:

{They said: We are missing the drinking cup of the king. And for he who produces it is [the reward of] a camel’s load, and I am responsible for it.} (Yoosuf 12: 72)

قَالُوا نَفْقِدُ صُوَاعَ الْمَلِكِ وَلِمَن جَاءَ بِهِ حِمْلُ بَعِيرٍ وَأَنَا بِهِ زَعِيمٌ .

This verse, which refers to Prophet Yoosuf (AS), mentions laws which were divinely legislated before the mission of the Prophet Muhammad (SA) and the specific legislations brought by Islam. Most scholars act upon such older legislations when they are conveyed to us by the Qur’an or Sunnah, as long as they have not been abrogated in Islam.

943. Also, if there was no compensation announced in the first place. That is because no one shall be held liable for paying compensation that he or she did not agree to. The exceptions to that are:

1. If a worker who is known to do a certain job did that job for an individual with the individual’s permission, then the worker will deserve the ordinary compensation for that job (ajr al-mithl).

2. If someone saved another person’s possessions in an emergency, and that required some work on his or her part, then he or she also deserves the ordinary compensation for that job (ajr al-mithl), according to the stronger view of the Ḥanbali school, as stated by Imam Ibn Taymiyah in al-Fatâwâ al-Kubrâ.

Reviving Barren Lands & Per-Job Wage

( Page : no 84)

The Book of Selling and

Commercial Transactions

Reviving Barren Lands

& Per-Job Wage

إِحْيَاءِ الْمَوَاتِ

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

بَابُ الْجَعَالَةِ

Reviving Barren Lands & Per-Job Wage