Lease and hire (ijara)

Ijara is an exchange contract on known benefits for a consideration. Jurists use the word ijara for the contract on the benefit of persons and on movable things other than ships and animals, and kira' (hire) for the contract on the benefit of land, houses, ships and animals; they hold the two words to mean the same thing. ¹

Ijara is an exchange, so the lessor may take the rent before the lessee benefits, just as a seller may take the price before delivery. If the rent is paid in advance, the lessor owns it by agreement. ¹

The majority hold that the lease is binding. Neither party may dissolve it alone, except on a ground that dissolves other binding contracts, such as a discovered defect or the loss of the place where the benefit is taken; they cite the Qur'anic command to fulfil contracts. ¹ Abu Hanifa and his companions allow the tenant to cancel for a supervening excuse, such as a shop where the goods burn or are stolen, since the benefit cannot then be taken. ¹

In a lease of a hired worker, the thing comes from the lessee and the labour from the worker. In istisna', a commissioned manufacture, the thing and the labour both come from the craftsman. ²

The lease is lawful in principle, by the Qur'an (the texts on wages for nursing), the Sunna (a report from Abu Sa'id al-Khudri about hiring), consensus and reason. ²

Most jurists hold that the lease is formed by any wording that expresses it, such as hiring, renting and letting out, and by a loan for a price. The Hanbalis allow a wider range, including the verb to let (ajartu) and the sale of a benefit. ^{3 6} The default is an immediate contract. A lease of a named thing may be joined to a future date by the majority, while the Shafi'is forbid suspending it on a condition. A lease on an obligation in the worker's dhimma describes a benefit and makes the worker answerable for it. ^{6 7}

For non-Hanafis the parties are pillars of the contract; the Hanafis count them as parties to it, not pillars. Both must have reason and be competent to dispose of property. The contract must rest on mutual consent, and one made under compulsion is void. The Shafi'is and Hanbalis require the right to conclude the contract, so a contract by an unauthorised agent is void for them. ⁴ A minor's lease that runs past his majority is not binding on him, according to one Hanbali view. ⁵

For the Hanafis the contract is on the benefit, whatever its object. The Malikis and Shafi'is distinguish a lease of the benefit of a specific thing from a lease of a benefit owed in the dhimma, requiring prompt payment in the second case to avoid debt for debt. The Hanbalis count three kinds of object, the first being work owed in the dhimma on a named item. ⁵

Rent is what the lessee undertakes to pay for the benefit he takes, and whatever may serve as a price in a sale may serve as rent. ⁸ The Hanafis do not allow the rent to be a marriage or a benefit of the same kind as the lease, unless it is a benefit of a different kind, such as lodging in return for service. ⁹ Some jurists, including the Hanafis, Malikis and Shafi'is, forbid the rent to be part of the work or of its product, because of the uncertainty involved; the Hanbalis allow it when the rent is an undivided share of what the worker produces, on the model of partnership and irrigation contracts. ^{9 10}

The Hanafis distinguish void from defective contracts: a defective one is lawful in its basis but unlawful in an attribute. If the object, the rent or the term is unknown, the lessee owes the fair rent after taking the benefit, not exceeding the rent named, according to Abu Hanifa and his companions; nothing is due if he takes no benefit. ¹⁰ The majority do not distinguish void from defective contracts. They hold that a contract missing what the law requires is not valid, so the named rent is not owed; the lessee owes the fair rent once he has taken possession, taken the benefit, or let a period pass in which the benefit could be taken. ^{10 11}

Al-Kasani holds that rent becomes owned only in one of three ways: prompt payment stipulated in the contract, prompt payment without stipulation on the analogy of sale, or the taking of the benefit. ¹¹ The Malikis take deferral as the default, with exceptions where prompt payment is due by stipulation or custom. The Shafi'is and Hanbalis hold that rent is due by the contract when no term is set, and is fixed by taking the benefit; in a lease of work it becomes a debt on the lessee at once, and is claimable only on delivery of the work or after the term for a private worker. ^{11 12}

The Hanafis allow a second lease when its rent is not of the same kind as the first. If the kind is the same, the surplus is not lawful for the first lessee, who must give it as alms, though the second lease is valid. If the first lessee added an improvement to the thing, the surplus is lawful as payment for it. The Hanbalis allow a surplus in a second lease in one view, and in another allow it only with the lessor's permission. ¹³

The Malikis allow leasing a thing before possession, whether land or movable. The better-known Shafi'i view forbids it, as a sale before possession is forbidden. Abu Hanifa and Abu Yusuf allow it for land but not for movables, and Muhammad forbids it entirely. ¹³

The Malikis and Shafi'is allow leasing the thing back to its lessor; the Hanafis forbid it in every case. ^{13 14}

Delivery in a lease means enabling the benefit. If something arises during the term that prevents use without the lessee's act, the lessor must repair it, such as the building of a house. ¹⁴ In a lease of work, the worker is the one who lets his services; his doing the work is delivery. A shared worker who works on a thing delivered to him must return it after the work; where no thing is delivered, as for a physician or broker, merely doing the task is delivery; a private worker's presence at the employer's place is effective delivery. ¹⁴

Where a named thing is usurped, the majority give the lessee a choice between cancelling the lease and waiting a short time until the thing is recovered; in a lease on an obligation in the dhimma the lessee may not cancel, and the lessor must substitute. The Shafi'is and Hanbalis allow cancellation if substitution is impossible. A fixed-term lease ends when its term passes. ¹⁴

The lessee must pay the rent. The Hanafis and Malikis allow the lessor to hold the leased thing until an advance payment is made; the Hanbalis do not. A worker whose work affects the thing, such as a fuller or dyer, may hold it for his fee where holding is allowed; a porter, whose work does not affect the thing, may not. ¹⁵ The lessee must use the thing for its intended purpose, as the contract or custom specifies, and must not exceed what was agreed; a house let for residence may not become a school. ¹⁵

The lease ends by agreement on the expiry of its term, the destruction of the named object, or rescission. The Hanafis add the death of either party and the arising of an excuse that prevents use, because they hold that the rent renews with the benefit; the others disagree, because the rent is fixed by the contract. ¹⁶ If the term ends while a crop is still standing or a ship is at sea, the term is extended for the excuse. ¹⁶

Most jurists do not allow cancellation for excuses, because the lease is binding and is dissolved only by both parties' consent; the Shafi'is say a lessee's journey or illness does not entitle him to cancel. ¹⁷ The Malikis allow cancellation for excuses in principle, such as seizure of the object, closure of shops by an unjust ruler, or a wet nurse's pregnancy or illness that prevents suckling; the Hanafis go further. ¹⁷ Excuses that allow the lessee to cancel include a boy's coming of age during the term of a lease his guardian made, and a rise in the fair rent in a waqf lease, when the trustee may cancel and renew at the new price. ¹⁸ If cancellation is impossible, as when a crop is still standing, the lease continues until the harvest at the fair rent. ¹⁸

The Hanafis and some early jurists hold that a lease ends on the death of the lessor or the lessee, because the lessor's ownership ends with his death and the lessee's heirs have no contract with the lessor. The majority hold that a lease does not end on death, because it is binding, and that dissolution must be claimed. ¹⁹

The Hanafis treat an existing lease on a thing as a defect that gives the buyer an option to cancel the sale of that thing. If a defect arises during use, the lessee has the right to cancel, since benefits are received gradually; if the defect is removed before he cancels, the right lapses. ^{20 21}

They may dispute the term, the rent, trespass or return of the thing. Where there is no proof, the jurists determine who is claimant and who is defendant, and the outcome depends on that. ²¹

The general rule is that whatever may be sold may be leased, provided the thing is not consumed in taking its benefit; some things that cannot be sold may still be leased, such as waqf property. The benefit must be one sought in itself by custom. ²²

Most jurists require farmland to have dependable water for cultivation: a river that customarily does not fail when irrigation is needed, a spring, a cistern, a well, or rain sufficient for the crop. The Malikis allow leasing rain-fed land for cultivation even for many years, if no rent is paid in advance. ²³ A farm may be leased for a known term, even ten years or more. The Shafi'is allow a hundred years; another Shafi'i view sets thirty years, and another a single year. ²⁴

Most jurists require the lease to state the kind of use, cultivation or planting, but not the particular crop. A lease for "cultivating or planting" is invalid for uncertainty; a lease for "cultivating and planting", in the Hanbali view, is valid. ²⁵

The lessor must deliver the land empty; if it holds another's crop, the lease is invalid. ²⁶ The lessee owes the agreed rent once use is enabled. The Hanafis hold that if the water supply is cut, or the land is flooded, the rent falls away; a land from which water may recede is leased if cultivation is possible after it recedes. ^{26 27}

The lessee must use the land within what is customary and agreed. The Hanafis hold that one who leases land for wheat may not plant cotton; if he does, he owes the loss he caused and is treated as a usurper. ²⁷ If a crop cannot be harvested within the term, the Shafi'is hold that a stipulation to leave it standing voids the lease when it contradicts the contract's purpose; for trees, leaving them standing may be stipulated, since the contract allows it. ^{28 29}

The term must be known and need not begin at once. A lease of a house for a month at a time is valid according to the majority; the first month binds by the contract and later months bind when the lessee takes them up. One Shafi'i view holds it invalid. If the lease says one month at a price and the rest pro rata, it is valid for the first month and void for the rest as unknown. ³⁰

The lessor must enable use, and rent runs from the time of enablement, even if the lessee does not use the house. If the term passes without enablement, the lessor is owed nothing. ³¹ The lessee may sublet the house to another as long as he may use it himself. ³¹

If a dhimmi leases a house from a Muslim to make it a church or a shop for selling wine, the majority hold the lease void because it is for a wrong; Abu Hanifa allows it, since the contract covers the benefit of the house as such. If the dhimmi leased it for residence and later made it a church, the lease stands, and the authorities may prevent the change. ³¹

The Hanbalis allow paying for the covering of a stallion when a person needs it and cannot find another; the Malikis, some Shafi'is and Abu al-Khattab allow hiring it in general. The majority hold that an animal lease may not lead to the sale of its produce, as when a ewe is hired for her milk, since the object of a lease is the benefit, not the thing itself. ³²

A worker may be a private worker hired for one employer only, or a shared worker serving several. A private worker may be hired for work a Muslim may do for himself, such as tailoring, building or ploughing; not for work he could not do for himself, such as pressing wine or herding pigs. ³³ A private worker may not work for others without the employer's leave, and his wage is reduced accordingly. ³⁴

The general rule is that no hire may be taken for acts reserved to Muslims, such as leading prayer, the call to prayer, the pilgrimage, teaching the Qur'an and jihad. This is the view of Ata', al-Dahhak ibn Qays, Abu Hanifa and Ahmad, who rely on reports about the call to prayer given without pay and about teaching the Qur'an. ³⁵

The Malikis allow a wage for leading prayer, for giving fatwas to one without means, and for recommended acts and communal obligations. The Shafi'is allow hire for reciting the Qur'an at a grave, and for pilgrimage or lesser pilgrimage performed for another with a named person. A ruler may hire a non-Muslim for jihad, but a Muslim, even a boy, cannot be hired for it because it is an individual duty on him. ³⁶

The employer must pay the worker's wage once the worker has made himself available, even if he does no work, provided he does not refuse the work asked of him without right. A gift given to the worker from outside is not counted as wage. If someone says "do this and I will honour you" without naming the honour, the worker receives the fair wage. ³⁶

A wet nurse may not be hired without her husband's consent, and he may cancel the lease if he was not informed. If she becomes pregnant, the hirer may cancel if he fears the nursing child is harmed by her milk. If the nursed child dies, the lease ends. ^{37 38}

A shared worker works for the employer and for others, like a builder or a boatman. The contract must state the kind of work, though it may also state a term. ³⁸ Where work is joined to a term, the Hanafis and Shafi'is hold the contract void, since it combines a private and a shared worker; the Malikis and the two companions of Abu Hanifa hold that the work is the object and the term serves only for timing. ³⁹ The worker must deliver the work. If the work is in the employer's hand, he may claim the proportion of the wage for the part completed; if it is in his own hands, as with a fuller or dyer in his shop, he is paid only after finishing and delivering it. ^{40 41}

The Hanafis and Shafi'is fix the value for liability on the day the cause of liability occurs, whether loss or transgression; the Malikis fix it on the day the thing is delivered to the worker. An employer may not stipulate that the worker is liable for what he is not liable for, nor waive liability for what he must bear, because such a term contradicts the contract. ⁴¹

Cupping is lawful by agreement, but the reports on taking a fee for it conflict. Some allow it, since the Prophet ﷺ was cupped and paid the cupper, as reported in al-Bukhari; some dislike it, on a report from Rafi' ibn Khadij, which others say was abrogated. ⁴² A cupper or physician who is skilled and does not exceed the usual practice is not liable; otherwise he is. ⁴³ Hiring a cupper for bloodletting, shaving, or circumcision is allowed without dispute. ⁴³ Hiring a physician for treatment is allowed, the Shafi'is requiring that his error be rare; they differ on hire for a fixed period. ⁴³

The shepherd is bound to tend the flock, and the Hanafis hold him bound to graze it by custom. If he fears that a sheep will die and slaughters it, the rules are set out in the entry. ⁴⁴

The lease of a shared worker ends on completion and delivery of the work, or the destruction of the object of the work, and by the general causes listed above. ⁴²

The headword closes at p.1576, where the next headword, إجازة, begins. The subject of the shared worker's lease is finished here at summary level only. ⁴⁵