Tarmim (repair of endowed property, rented property and pledged property)

Tarmim is repair. It arises for endowed, rented and pledged property. An endowment is repaired from its income by the Hanafis, Malikis and Shafi'is; a lease's repair falls on the landlord by the Hanafis, Shafi'is and Hanbalis; a pledge's upkeep falls on the pledgor. ^{1 4}

Tarmim in the language is putting right; one says the wall was repaired, and that a building is due for repair when the time for plastering has passed. It may aim at strengthening what is in danger of loss, or at improving it. ¹

The Hanafis, Malikis and Shafi'is hold that an endowment is repaired from its income before the beneficiaries are paid, since the founder meant the income to last, and it lasts only with repair. If the founder stipulated first repair, the administrator keeps each year what repair needs. If the endowed house is for lodging, its repair falls on whoever has the right to live in it, from his own money; if he refuses or cannot, the judge rents it and repairs it from the rent. ^{1 2} The Malikis hold that an endowment is repaired from its income; a stipulation that the beneficiary repair it is void. The founder or his heirs may refuse someone who wants to repair it when it is ruined, since no one may act on another's property, though it is better to let him build; mosques are beyond ownership. ² The Shafi'is repair from the endowment's money if it has any; if not, it is rented and repaired from the rent. An animal endowed for holy war is fed from the public treasury when its income fails. ² The Hanbalis follow the founder's stipulation for upkeep; an endowed animal is fed from its income when no stipulation is made; the repair of a building without life is required of no one unless the founder stipulates it. Part of an endowment may be sold to repair the rest when the founder is one. ^{3 4}

If a rented house needs repair, the landlord must repair it and mend what is damaged that hurts living there, according to the Hanafis, Shafi'is and Hanbalis. If the landlord refuses, the Hanafis let the tenant leave, unless he rented it knowing its state and accepted the defect. The landlord is not forced to mend a well or a drain; if the tenant does it, he does so as a volunteer. The tenant must mend what he himself damaged. ^{3 4} The Shafi'is give the tenant a choice if the landlord does not hurry to repair. The Hanbalis hold that a condition making the tenant pay the necessary upkeep is void; repair done with the landlord's leave is repaid, and repair without it is a gift. The Malikis allow the condition that the tenant bears upkeep if the rent for it is owed. ⁴ If a house owned jointly by two is rented and one owner alone permits repair, the tenant has no claim on the other owner beyond the share of the one who permitted it. ⁴

Whatever keeps the pledge in being is on the pledgor, since it remains his; whatever is needed to guard it is on the pledgee. The Hanbalis cite the hadith of Abu Hurayra (may God be pleased with him) that the pledge is not closed off from its owner: his is the gain and his the loss; the Shafi'is cite the hadith that the mount is ridden for its keep when pledged, and the milk drunk for its keep. ⁵ If the pledgor refuses, the judge compels him; if he does not comply, the judge takes from his money, or sells part of the pledge as needed. If the pledgee spends without leave while able to ask, it is a gift; if he cannot ask and spends meaning to recover, he may recover. ⁵