Islamic Fiqh > Companies and leases > Ijara (leasing) > Third question: the hire of a river, a canal and a well for its water
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This third installment on the pillars of ijara first examines the hire of natural resources: the water of rivers, canals and wells, then pastures (kala'). It then turns to the hire of buildings for worship or for what is unlawful (a mosque, a church, a tavern, the transport of wine), and to three conditions of the hired benefit: that it be lawful, that it be owned property, and that it not be an act of worship. The jurists also discuss the wage for teaching the Quran and fiqh, paid recitation for the deceased, and the fate of the reward of recitation.
What Allah brings forth from the grain through its irrigation and tilling is like what He brings forth from the milk of the ewe hired for her milk, when one seeks what Allah produces of her milk through her feeding, guarding and care: there is absolutely no difference between the two, except for divergences that carry no legal weight. Comparing this to the hire for digging a well is a corrupt analogy; the true parallel of digging a well would be to hire ploughmen to till one's land, sow it and water it. There is no doubt that comparing the hire of the animal for its milk with the hire of land for its produce is pure qiyas (analogical reasoning), which, as has come, is sounder than the comparison with the hire of bread for eating.
The tenth argument clarifies it: the gharar (uncertainty) and risk involved in hiring land for its produce are far greater than the gharar of hiring an animal for its milk, for the pests and obstacles that afflict the crop are more numerous than those that afflict milk. If that is therefore excused in the hire of land, it is more fitting and more appropriate to excuse it in the hire of the animal for its milk.
The opinions on contracting upon the milk during the milking period are three:
The jurists differ over hiring the water of a river, a well, a canal or a spring: is it permitted or not? The Hanafis, as narrated by al-Kasani, held that it is not permitted to hire the water of a river, well, canal or spring, because water is a thing (ayn). If he hires the canal, spring or well together with the water, that is likewise not permitted, since the purpose sought is the water, which is a thing; hiring the marshes (ajam) that contain water for fish, reeds or hunting is also not permitted, for all of that is a thing; hiring them without the water would be void, so they are all the more void with the water (« Bada'i al-Sana'i », 4/ 175; « Tuhfat al-Fuqaha », 2/ 357; « Fatawa al-Sa'di », 2/ 575).
But the position on which the Hanafis give fatwa is permissibility, on account of the widespread need. « al-Durr al-Mukhtar » says: « The hire of the canal and the river, that is, the watercourse, together with the water, as an accessory, is permitted; fatwa is given upon it due to the widespread need » (« al-Durr al-Mukhtar », 6/ 63). Moreover, the Hanafis in the position given fatwa upon, together with the Shafi'is and the Hanbalis, permit the hire of the well.
The Shafi'is say: hiring the canal, that is, the channel dug for agriculture, with its running water flowing into it from the river, is valid out of necessity; not the hire of its structure alone, without the water, by hiring it to gain priority over the water that will gather in it in the future through rain and snow, for that would be the hire of a future benefit. This is unlike hiring it so that water flows in it, or to retain water until fish gather in it. Hiring the well to draw its water is likewise valid, out of necessity.
Al-Nawawi, may Allah have mercy on him, said: hiring the canal to cultivate by its water is permitted: if we say that water cannot be owned, it is like the net for fishing; otherwise, the benefits pertain to the wells of water, and they permitted hiring a well to draw its water, and what follows [the canal] is hired for running water in it. Al-Ruyani, may Allah have mercy on him, said: if one hires the structure of the canal to gain priority over its water, it is permitted in one view, which is the chosen one; the well-known position is its prohibition; his wording implies by definition that water cannot be owned (« Rawdat al-Talibin », 4/ 10-11; « Mughni al-Muhtaj », 3/ 401; « Asna al-Matalib », 2/ 407).
As for the Hanbalis, Ibn Aqil, may Allah have mercy on him, said: it is permitted to hire the well to draw from it for known days or known buckets, for the well's air and depth contain a kind of benefit through the passage of the bucket; as for the water, it is taken by permission, since it is only owned through physical possession (hiyaza), as has come. « al-Mughni » adds: this rationale implies that it is permitted to hire its pool to fish from it for a known period. Al-Buhuti said: that is clear if the pool was not made for the fish, for the pool's air and depth contain a benefit through the passage of the fishing tool, the fish being taken by permission; if the pool was made for the fish, the fish becomes owned property upon arriving in it, and hire for taking it is not valid; but if he hired it before the fish arrived, to fish from it for a known period, it is valid, and when the fish arrives, its catch belongs to him (« al-Mughni », 5/ 319; « al-Sharh al-Kabir », 6/ 35; « al-Mubdi' », 5/ 77; « Kashshaf al-Qina' », 3/ 661-662).
As for the Malikis, « al-Mudawwana al-Kubra » reports, on the hire of the well, this series of questions and answers:
The jurists differ over hiring pastures for the grazing and herbage they contain: is it permitted or not, after their agreement on the validity of selling what one has taken possession of (hawaza)? Ibn Qudama, may Allah have mercy on him, said: whoever takes possession of water in his vessel, or gathers plants with his rope, or carries them on his mount, or takes from mines, owns it thereby, and may sell it without any disagreement among the people of knowledge (« al-Mughni », 4/ 71; « al-Mubdi' », 4/ 22; « al-Insaf », 4/ 291; « Matalib Uli al-Nuha », 3/ 24).
The Hanafis, the Shafi'is, the Hanbalis in the madhhab, and the Malikis according to one opinion, held that hiring pastures is not permitted. The Hanafis say: hiring pastures so that one's sheep or cattle graze them is not permitted, for ijara was instituted for the consumption of a thing that is owned, and common property does not bear it; likewise the sale of pastures is not permitted, for it would be a sale of what one does not own, the people sharing in it by common permission, not common ownership, according to the words of the Prophet (may the prayers and peace of Allah be upon him):
"Muslims are partners in three things: water, pasture and fire."Narrated by Abu Dawud (3477) and Ibn Majah (2472), with the addition: "and its price is unlawful"
Partnership in fire means warming by it and drying clothes: when a man lights a fire, everyone may warm by it; but taking embers is only permitted with the consent of its owner. Its meaning in water: drinking, watering beasts, drawing from owned wells, ponds and rivers. In pasture: a man may graze his livestock in it even if it is owned land; but the landowner may prevent entry; and when he prevents, the other is entitled to say: "I have a right in your land: either you grant me access, or you let the livestock graze, or you water them and return them"; it becomes like the garment of a man that fell into another man's house: either the owner permits him to enter and take it, or he brings it out to him. And when the water has been drawn into vessels and the pasture cut, their sale then becomes permitted, for he has thereby taken possession of it.
Ibn Nujaym, may Allah have mercy on him, said: it appears that this applies when the herbage grew by itself; if he watered the land and prepared it for sowing, then the herbage grew, its sale is permitted according to « al-Dhakhira », « al-Muhit » and « al-Nawazil », for it is his property; this is the choice of al-Sadr al-Shahid; likewise if he fenced his land and prepared it for sowing until the reeds grew, it becomes his property (« al-Bahr al-Ra'iq », 6/ 84). The device to render it permitted: hiring a spot of the land to pitch a tent or make an enclosure for one's sheep; the hire is then valid and the owner of the pasture grants enjoyment of the pasture.
The explanation of kala': everything that grows on the face of the earth, that is, spreading and sprawling without a stem, is kala'; what has a stem is a tree. On this basis they say: the red thorn and the white thorn, called ghargad, belong to trees, not to kala'; even if it grew in a man's land and another took it, the landowner may recover it from him. The upshot: whatever stands on a stem, when it grows in a man's land, is his property and is not shared among the people; the thorn (shawka) and the sharak are like the kala'; bitumen (qir), arsenic and turquoise are like the tree; whoever takes from these things is liable (« Bada'i al-Sana'i », 4/ 175; « Tuhfat al-Fuqaha », 2/ 357; « al-Muhit al-Rabbani », 8/ 97; « al-Hidaya », 9/ 122; « Majma' al-Anhur », 3/ 83; « al-Durr al-Mukhtar » with Ibn Abidin, 5/ 67; « al-Fatawa al-Hindiyya », 5/ 392).
Ibn Battal narrated from al-Shafi'i a position like that of the Hanafis: the Kufans said that the hire of pastures and their sale are not permitted, and that the landowner does not own the kala' until he has taken it and possessed it; this is al-Shafi'i's opinion. It is also the relied-upon position of the Hanbali madhhab: they say it is not permitted to sell what grows in one's land of kala' or thorns, for the kala' and the thorn are not owned before possession by a means intended for it, according to the sound position of the madhhab. The second narration: they are owned through the ownership of the land. On the madhhab, the landowner therefore cannot sell it, and it is not acquired by a contract of sale, but the buyer has more right to it than anyone else.
According to the madhhab as well: whoever takes something from it owns it, for it belongs to the permitted things of which the taker becomes owner, as if he took it from permitted land; but he may not enter another's property without the permission of its owner; and if he asks permission, preventing him is unlawful if no harm results. Ibn Aqil chose that it is not owned by taking, and derived from the prohibition a narration that it prevents ownership. The answer: his trespass does not prevent his ownership of it, as when a bird nests in his land, or game enters it, or the water of a fish dries up, and he enters and takes it. According to the second narration, the landowner may dispose of it by everything that transfers ownership, for it is generated from his land, which is owned by him; the shaykh Taqi al-Din (Ibn Taymiyya) permitted this. He said in « al-Ikhtiyarat »: the sale of the kala' and the like found in his land is permitted when he intended its growth. He also has the right to enter to graze a pasture, take it and the like, if it has not been enclosed, without harm, as Ibn Mansur transmitted; for no one may prevent him.
Ibn Qudama adds: whoever takes possession of water in his vessel, or gathers plants with his rope, or carries them on his mount, or takes from mines, owns it thereby and may sell it without disagreement among the people of knowledge. The Prophet (may the prayers and peace of Allah be upon him) said:
"If he takes a rope and gathers a bundle of firewood and sells it, Allah will compensate him by it; that is better for him than begging from the people, whether they give him or withhold."Narrated by al-Bukhari
Abu Ubayd transmitted in « al-Amwal », from the shaykhs, that the Prophet forbade the sale of water except what is carried from it. Upon this, the custom of the lands has proceeded on the sale of water of waterwheels, firewood and kala', without objection; and no one may drink from it, perform ablution with it, or take from it without the permission of its owner. Likewise, if he stands at a permitted well and draws with his bucket or wheel, the water he draws is his property and he may sell it, for it is his property, taken in his vessel. Ahmad, may Allah have mercy on him, said: he only forbade the sale of the surplus of well and spring water in its place. The sale of the well itself and of the spring is permitted, and the buyer has more right to its water.
It is narrated that the Prophet said: "Whoever buys the well of Ruma to make it available to the Muslims will enter Paradise," or words to that effect; Uthman ibn Affan bought it from a Jew at the command of the Prophet and made it free for the Muslims, while the Jew used to sell its water. It is narrated that Uthman bought half of it for 12,000 [dirhams]; the Jew then said: "choose: either you take it one day and I one day, or we each set up our bucket on alternate days." He chose one day and one day; the people drew during Uthman's day for two days; the Jew said: "you have ruined my well; buy the rest"; he bought it for 8,000. Herein lies the proof of the validity of its sale and of making it free, of the validity of selling the water drawn from it, of the permissibility of dividing its water by alternation, of the priority of its owner, and of the permissibility of dividing what contains a right without being owned property (« al-Mughni », 4/ 71; « al-Mubdi' », 4/ 22; « al-Insaf », 4/ 291; « Matalib Uli al-Nuha », 3/ 24).
Imam Malik, may Allah have mercy on him, held that a man may hire out the pastures of his land for a single year, no more. « al-Mudawwana » reports: "the man who hires out the pastures of his land: Malik said: there is no harm in a man selling the pastures of his land for one year, not for two or three years; he does not sell the pastures of his land until they are good and the herbage has reached the point of being grazed, nor before its herbage has sprouted. Ashhab differed from him on this basis" (« Sharh Ibn Battal », 6/ 496). « al-Bayan wa-l-Tahsil » of Abu al-Walid Ibn Rushd al-Qurtubi reports: he was asked about the man who owns land with herbage and wants to protect it: is that permitted to him? He said: "Yes, if he has need of it; if he has no need of it, I do not see it permitted for him."
Muhammad ibn Rushd said: the ruling on kala' varies according to its locations, which divide into two: land that is not owned, and land that is owned. If it is on land that is not owned, such as deserts, wastes and open steppes, there is no disagreement: all people are equal in it, no one may be prevented from it, nor may it be sold while standing in place, according to the saying of the Messenger of Allah: "Do not withhold the pastures," and his saying: "The surplus of water must not be withheld so as to withhold the pasture"; he forbade withholding it and what leads to withholding it, for the owner of livestock, if prevented from water, cannot care for his flock. If two men come to graze the pasture of that place together, they are equal in it. It is disputed whether the one who reaches it first, settles and grazes around it, or digs a well in it, has priority for the extent of his need of the pasture of that place, apart from the surplus. Three opinions:
If the kala' is on owned land, the land itself divides into four categories:
As for the enclosed, walled land, like courtyards and gardens, there is no disagreement about its kala': its owner is entitled to it, he may sell it and withhold it, whether he needs it or not; no one has the right to enter upon him in his enclosure to graze or graze about, except with his permission. As for the spontaneous growth and what is let go from nearby land, there is no disagreement: he does not sell it and does not prevent the people beyond his need of it, unless their access with their mounts and livestock causes harm to a crop he has a right to, which would be spoiled by their coming and going.
As for the land left fallow for pasture, whose cultivation he abandoned for that: according to one view, he may withhold it if he needs it to graze, and sell it to whoever would graze or graze about in it if he does not need it: this is the madhhab of Ibn al-Qasim and Ibn al-Majishun; if he has no need of it and finds no buyer, he is compelled to leave it open between himself and the people, and it is not permitted to him to withhold it from them, and it is left until it dries and spoils. According to another view, reported from Ashhab: he may withhold it if he needs it, but he has no right to sell it. As for the fallow lands not left for pasture, Ibn al-Qasim and Ashhab say: he may withhold if he needs it, and may not sell if he does not need it; Ibn al-Majishun says: he may withhold if he needs it and sell if he does not need it. Ashhab thus holds that he may never sell the pastures of his land, whether he left them fallow for grazing or not; Ibn al-Majishun holds that he may always sell them; Ibn al-Qasim distinguishes, in permitting him to sell when he dispenses with it, between the land left fallow for pasture and that which was not: in sum, this yields three opinions.
The objectors finally point out, in the chapter on the protected zone of the well in « al-Mudawwana », two statements of Malik that appear contradictory: that a man may withhold the kala' of his land if he needs it, otherwise he must leave it open between himself and the people; and that a man may sell the herbage of his land to whoever would graze it that year, after it has sprouted, but not for two or three years. It has been said that this is an internal divergence of his statement: at one time he held that a man may sell the herbage of his land, whether he had reserved it for pasture or not, like Ibn al-Majishun; at another, that he may not sell it, whether reserved or not, like Ashhab. It has been said that this is not a divergence of his statement, but that he distinguished between the land reserved for pasture and that which was not, like Ibn al-Qasim: this is the explanation of Isa ibn Dinar (« al-Bayan wa-l-Tahsil », 10/ 245, 247; « al-Tawdih », 7/ 275, 277).
The jurists differ concerning the man who hires out his house so that it becomes a mosque in which the Muslims pray: is it permitted or not? The majority of jurists, the Malikis, Shafi'is and Hanbalis, held that a man may hire out his house so that it is made into a mosque for a known period, after which it returns to his ownership: this is a lawful benefit that can be obtained from the thing while it remains, like dwelling; and it is an act of devotion (qurba), like hiring a house in which judgment is held, or lending one's horse to one who goes out on a raid and then returns to him (« al-Ishraf », 3/ 222, no. 1071; « al-Sharh al-Kabir » with the hashiya of al-Dasuqi, 5/ 349, 361; « Mawahib al-Jalil », 7/ 404, 417; « al-Taj wa-l-Iklil », 4/ 474; « Sharh Mukhtasar Khalil », 7/ 11; « Tahrir al-Mukhtasar », 4/ 558, 567; « Mughni al-Muhtaj », 3/ 399; « al-Mughni », 5/ 319; « al-Sharh al-Kabir », 6/ 33; « al-Muharrar fi-l-fiqh », 1/ 356).
The Malikis say: hiring land so that it is made into a mosque for the duration of the lease is permitted, since perpetuity is not a condition in the waqf (habs). When the term expires, the demolition returns to the builder, who does with it what he wills, and the land returns to its owner. If the owner wants the building to remain as a waqf on his land, the builder is not compelled, unless the owner pays the value of the demolition; and the builder is not compelled to keep it as a waqf either. This is unlike the one who usurped land and built a mosque on it, or who held the land under a doubt and built a mosque on it for Allah: the demolition then does not belong to the builder, who must place it in another mosque for Allah, for he built it for Allah in perpetuity, having entered upon perpetuity.
The relied-upon position is that it is not permitted for a man to build a mosque in order to rent it to those who pray in it, nor to hire out his house for prayer against a wage: both hires are not permitted, for this is not among the nobilities of character (makarim al-akhlaq). Al-Lakhmi, may Allah have mercy on him, said: if he rents out his house to those who pray in it only at the times of the prayers, it is disapproved, for it is not among the nobilities of character; if he dwells in it, it proceeds; if he vacates the house and hands it over, it is permitted. In « al-Tanbihat »: building a mosque in order to rent it out is permitted according to one narration, disapproved according to the narration of Ibn al-Qasim; likewise the one who hires out his house to a people to pray in it: "it does not please me," like the one who rents out the mosque. Another's statement concerning the house: there is no harm in hiring it out for prayer. The one who built a mosque and then rented it out: had he made it available to the Muslims, it would have been a waqf in which he had no ruling, nor anyone else, even if he had not made it available; he did that in order to rent it, which is not among the nobilities of character nor the deeds of the people of religion: such is the meaning of "it does not stand" regarding the mosque and of "it does not please me" regarding the house, the deed remaining permitted, as the hire of the mushaf (codex) was permitted, though Muhammad forbade hiring it out.
Likewise disapproved is dwelling above [the mosque] with one's family: for then he treads on the roof of the mosque, which is disapproved; dwelling above the roof without family is permitted; likewise dwelling with family beneath the mosque, whether the mosque was built for hire or not (« al-Ishraf », 3/ 222, no. 1071; « al-Sharh al-Kabir » with the hashiya of al-Dasuqi, 5/ 349, 361; « Mawahib al-Jalil », 7/ 404, 417; « al-Taj wa-l-Iklil », 4/ 474; « Sharh Mukhtasar Khalil », 7/ 11, 20; « Tahrir al-Mukhtasar », 4/ 558, 567). « al-Mudawwana » (11/ 423) specifies: building a mosque and renting it to those who pray in it: "this does not stand in my view, for mosques are not built for rent." Malik was asked about the man who builds a mosque and then builds a house above it: "that does not please me"; Malik mentioned that Omar ibn Abd al-Aziz used to stay in summer on the roof of the mosque of Medina, and no woman would approach it then; and the one who builds above the mosque intends to make it a dwelling to live in with his family: Malik disapproved of that strongly, for he would have his family tread on the roof of the mosque. Hiring out one's house to a people who pray in it in Ramadan: "that does not please me, for whoever rents out his house is like the one who rents out the mosque, and the hire is not permitted therein, since the hire of mosques is not permitted"; another said: there is no harm in hiring out the house. Hiring out a house so that it is made into a mosque for ten years: "that is permitted"; when the ten years have passed, the house returns to its owner, and the demolition of the mosque belongs to those who bought it and built the mosque: the demolition is theirs.
The Shafi'is say: hiring a house to take it as a mosque in which one prays is valid. Al-Shirbini said, as reported by the Sahib al-Intisar: its form is hiring it for prayer; as for hiring it in order to make it a mosque, it is not valid without disagreement (« Mughni al-Muhtaj », 3/ 399). The Hanafis, for their part, held that it is not permitted for a Muslim to hire from a Muslim a house in which to perform an obligatory or supererogatory prayer, for the mosque cannot be owned, and it is a thing devoted to the direction of devotion, to direct the benefit toward it: benefit cannot be withheld for the sake of that direction, and no wage can therefore be taken for it (« al-Mabsut », 16/ 38; « Mukhtasar Ikhtilaf al-Ulama », 4/ 131; « al-Bahr al-Ra'iq », 8/ 23; « al-Hindiyya », 4/ 450).
The jurists agree that the benefit must be of those that it is permitted to obtain; if it is forbidden to obtain, the ijara is not valid. No hire is therefore valid for acts of disobedience: hiring a man for play and amusement, hiring the female singer and the professional wailer for singing and wailing, and all amusements. It is a hire upon disobedience, which cannot be acquired by contract: the exchange occurs only if each of the two becomes liable to the other; were disobedience made a debt, it would amount to attributing to the Lawgiver the institution of a contract obliging to disobedience, Allah is transcendent above that in great exaltation. Moreover, the hirer and the hired are partners in that worldly benefit: the hire would then fall upon a work in which the hirer is a partner.
Likewise hiring a man to kill, wound, imprison or strike someone unjustly: every hire concluded for an oppression is invalid, for it is a hire for an act of disobedience, and what is contracted upon is therefore not among those benefits it is permitted to obtain under the sharia. Likewise hiring to teach the Torah or the Gospel, sorcery, obscenity, astrology and sand-divination, or to make images of animals and other forbidden things.
Ibn Juzayy, may Allah have mercy on him, said: the benefit must be lawful, neither forbidden nor obligatory; as for the forbidden, the hire is not permitted by consensus (« al-Qawanin al-fiqhiyya », 181). Ibn al-Mundhir, may Allah have mercy on him, said: all the scholars whose statements we preserve agreed upon annulling the hire of the wailer and the female singer (« al-Ijma' », 557; « al-Ishraf », 6/ 325; « al-Mabsut », 16/ 41; « Bada'i al-Sana'i », 4/ 189; « al-Hidaya », 3/ 240; « Tabyin al-Haqa'iq », 5/ 125; « al-Jawhara al-nayyira », 3/ 362; « al-Lubab », 1/ 490; « al-Bahr al-Ra'iq », 8/ 23; « Majma' al-Anhur », 3/ 533; « al-Durr al-Mukhtar », 6/ 55; « Tanqih al-Fatawa al-Hamidiyya », 7/ 396; « al-Sharh al-Kabir », 5/ 360, 365; « Mawahib al-Jalil », 7/ 416; « al-Taj wa-l-Iklil », 4/ 484; « Tahrir al-Mukhtasar », 4/ 566, 570; « Sharh Mukhtasar Khalil », 7/ 19; « Rawdat al-Talibin », 4/ 24; « Mughni al-Muhtaj », 3/ 387; « al-Sharh al-Kabir », 6/ 28; « al-Mubdi' », 5/ 73; « Kashshaf al-Qina' », 3/ 657; « Sharh Muntaha al-Iradat », 4/ 24-25).
If he gives him the wage for singing, wailing or other acts of disobedience, and he receives it, it is not lawful for him: the majority require returning it to its owner. According to one Hanafi opinion, if he took the money without a prior condition, it is permitted to him, for it was given him willingly without a contract: this is also the opinion of shaykh al-islam Ibn Taymiyya and Ibn al-Qayyim. Ibn al-Qayyim expounds in « Zad al-Ma'ad » (5/ 778, 786) the rule of the prostitute's earnings: if she receives and then repents, must she return what she took?
This rests on a great rule: whoever takes what is not lawful to him and then wishes to rid himself of it: if the thing was taken without its owner's consent and without consideration, he returns it; if returning it is impossible, he pays a debt known to be owed to him; then he returns it to his heirs; then he gives it as charity on his behalf; if the creditor chooses the reward of the Hereafter, it is his; if he insists on taking from the good deeds of the taker the like of his property, he takes the equivalent, the reward of the charity remaining to the one who gave it. If the thing was taken with the giver's consent, as a forbidden consideration, against wine, a pig, fornication or obscenity, there is no return: the giver gave it of his own choice and obtained his forbidden consideration; granting him both would be aiding him in sin and iniquity, making things easy for the people of disobedience, and something abhorred by universal reason, which no sharia would enact: what would the fornicator want, knowing he attains his goal and recovers his money? But the taker may not consume this earning: it is foul, as the Messenger of Allah judged it; its foulness lies in the foulness of its earning, not in an injustice against the giver; the path to rid oneself of it and to perfect repentance is to give it in charity, and if one needs it, to take the amount of one's need and give the rest in charity: such is the ruling on every foul earning, whether its consideration is a thing or a benefit. The judgment of foulness does not entail return: the Prophet judged the cupper's earning foul without obliging him to return it.
It will be objected that the giver gave what the Lawgiver forbade giving in exchange for a forbidden consideration: the taking would therefore have no effect, and return would be due, like the dying man's gift to his heir, or to a stranger beyond the third, or the gift of one under interdiction or compulsion. The answer: this is an invalid analogy, for in those cases the gift is pure and is never exchanged; here he exchanged his money for obtaining a forbidden benefit or consuming a forbidden thing: he received a forbidden consideration and paid unlawful money; justice requires the mutual return of the two considerations, but if the return of one is impossible, it does not oblige the return of the other; however, if the wine is still there, and he neither consumed it nor paid money for it, the return of the money is obligatory in both cases, as in the other invalid contracts without taking. If it is asked what effect this forbidden taking has such that it should be sacred, since taking what it is not permitted to take is as if it were not taken: the giver likewise took the thing and obtained the benefit without right; both of them joined in giving and taking what is not theirs to give and take, both disobeying Allah: how could either of them alone be granted both the consideration and its replacement? If it is said that he forfeited the benefit by his own choice, the answer is that the other forfeited the money by his own choice: there is no difference. Ibn Taymiyya had hesitated in « Iqtida' al-sirat al-mustaqim »: the fornicator, the listener to singing and to wailing gave this money of their own accord and obtained the forbidden consideration; the prohibition belongs to the right of Allah; the benefit has passed away with the taking; the foundations require that if one of the two considerations returns, the other returns; if the hirer cannot return the benefit, the money is not returned to him, unlike wine or carrion which we would have destroyed: the benefit of singing, had it not passed, would have been available to him. But we command neither giving it nor returning it, like the forbidden contracts of the disbelievers: if they embrace Islam before the taking, they are not compelled to take; after the taking, they are not compelled to return; the Muslim, however, is deprived of this wage because he believes in its prohibition, unlike the disbeliever: when he claims the wage, he is told that, having directed his strength toward an unlawful work, he is not paid by it; and the one who paid the money in exchange only retrieves what he gave if a benefit remains with the taker. Ahmad explicitly stated, in the narration of Abu al-Nadr, regarding the one who carried wine, a pig or carrion for a Christian: "I disapprove of his consuming his hire, but the porter is paid his hire; if it is for a Muslim, it is worse."
His companions differed over this text along three paths:
Abu Hanifa, may Allah have mercy on him, held, like the first narration, that the hire is valid and the wage paid: unrestricted carriage does not fix the carrying of wine, mentioning or not mentioning its object being the same, and he may carry something else, vinegar or oil. Abu Bakr al-Razi said that with Abu Hanifa there is no difference between stipulating the sale of wine or not, even if he knows wine will be sold there: the hire is valid, for he has no right to dwell there otherwise, the wage being due to him regardless; likewise hiring a man to carry wine, carrion or a pig: it is valid, the carrying of wine not being fixed; had he carried juice instead, he would have earned the wage: the restriction is void with them, and the unrestricted hire is permitted in his view, even though disobedience is more likely, just as it is permitted to sell juice to one who will make it into wine. Our shaykh and al-Asbah followed the path of Ibn Musa: he is paid though the benefit is forbidden, but consuming it is not good for him: it is closer to Ahmad's intent and to analogy, for the Prophet cursed the presser, the one pressed for, the carrier and the one carried to; and the presser and the carrier exchanged for a benefit that deserves consideration and is not forbidden in itself, becoming forbidden only through the intent of the one pressed for or carried to, like the one who sells grapes or juice to one who will make wine: the seller's money does not vanish, he is paid his consideration. Likewise, had the carrier carried it to be poured out or removed to the desert for fear of nuisance, it would be permitted; the wage is forbidden to him for the right of Allah, not for the right of the hirer, unlike the one hired for fornication, debauchery, murder or theft: the deed itself is forbidden there by the hirer's intent, like the sale of carrion or wine, whose price is not paid. Our shaykh said: such a hire and ja'ala, meaning the carrying of wine and carrion, cannot be described as valid absolutely nor invalid absolutely: it is valid with respect to the hirer, in the sense that the consideration is owed to him, and invalid with respect to the hired, in the sense that he is forbidden to benefit from the wage; the sharia has precedents of this kind. This does not contradict Ahmad's text disapproving of treading the Christian's vineyard: we forbid him the deed and its counter-wage, then pay him his hire; otherwise it would be an immense benefit for the rebels: whoever is hired for a work by which they aid disobedience, if they give him nothing and he must return to them what he took, that would be the greatest aid to them, and they must not be aided in that, unlike the one who hands them a work of no value: the prostitute, the singer and the wailer are not paid; if they took money, the correct view is that they need not return it, but consuming it is not good for them. Allah grants success to what is correct.
The jurists of the four madhhabs agreed that it is not permitted for a Muslim to hire out or sell his house to a Christian, a Jew, a Magian or anyone else, so that he makes it into a church, a fire temple or a fire house, if his dwelling is in a major city (misr): it is an aid to disobedience, according to the word of Allah:
"And help one another in righteousness and piety, but do not help one another in sin and enmity."
Surah 5, verse 2
For they cannot do so in the major cities, given the manifestation of the rites of Islam, and the manifestation of the rites of disbelief is not set against it. They then differed: is it permitted to him to hire it out for that in the countryside (sawad)? The majority of jurists, the Malikis, Shafi'is, Hanbalis, together with the two Hanafi companions Abu Yusuf and Muhammad, held that a man may not hire out his house to one who will make it a church, a fire temple or a fire house, in the major cities as in the villages: it is a forbidden deed, and the hire upon it is therefore not valid, like hiring out one's slave for immorality. If the contract took place, it is annulled; if it was executed in whole or in part, the famous Malikite position is that he must as an obligation give all the rent as charity to the poor in the case of hire, and the surplus of the price over the price of the equivalent in the case of sale: one assesses what the house or land is worth to one who will make it a church or a tavern, fifteen for example, then what it is worth to one who will not, ten, and he gives the extra five as charity.
The difference between hire and sale is explained: the leased property returns to the lessor, so the harm is little, hence the charity of the whole rent; the sold property does not return, and charity of the whole would be too hard; the land follows the house in the rent, one view prescribing only the surplus, as in the sale, since the house is generally of benefit only after building, so that the money was paid only against the land itself, whereas the land benefits without building, its benefit being what is sought by the hire (« al-Mudawwana al-Kubra », 11/ 423-424; « al-Sharh al-Kabir » with the hashiya of al-Dasuqi, 5/ 365; « Mawahib al-Jalil », 7/ 424; « al-Taj wa-l-Iklil », 4/ 489; « Tahrir al-Mukhtasar », 4/ 570-571; « Sharh Mukhtasar Khalil », 7/ 22-23; « Manh al-Jalil », 7/ 449; « al-Bayan », 7/ 290; « Mughni al-Muhtaj », 3/ 387; « al-Mughni », 5/ 321; « al-Kafi », 2/ 302; « al-Sharh al-Kabir », 6/ 28; « Iqtida' al-sirat al-mustaqim », 233, 236; « Ahkam ahl al-dhimma », 1/ 215).
Imam Abu Hanifa, may Allah have mercy on him, said: hiring a house to be made into a fire house, a temple or a church is permitted in the sawad, that is, the countryside. It was only permitted in his time because the sawad then belonged to the people of the covenant (dhimmis), who were not prevented from erecting churches in their properties, all the more so by hiring; they consented to it through the contract of hire, its basis being their hiring them for their slaughterhouses. The hire bears upon the benefit of the house, with no disobedience in it: the disobedience lies in the act of the hirer, a free agent, so that the connection with the lessor is cut, like selling the slave woman to one who will not free her, or who will abuse her, or the boy to one who will violate him. He restricted it to the sawad because they cannot display the sale of wine and pigs in the major cities, given the manifestation of the rites of Islam; they specified: the sawad of Kufa, most of whose inhabitants were people of the covenant; elsewhere the rites of Islam are manifest and they cannot do so, according to the sounder opinion.
Al-Kasani, may Allah have mercy on him, said: if the house is in the sawad, the foundational text states that he is not prevented from that; but it has been said that Abu Hanifa permitted it only in his time, for most of the people of the sawad in his time were Magians under covenant, so that it led neither to the humiliation nor the contempt of the Muslims. Today, praise be to Allah, the sawad has become like the major city: the ruling in it is as in it, provided this is not stipulated in the contract. But if a man of the covenant hires from a Muslim, in a major city of the Muslims, a house to make it a place of prayer for the public, the hire is not valid: it is a hire upon disobedience; likewise if he hires it from another man of the covenant for that, for what we have said (« Bada'i al-Sana'i », 4/ 176; « Tabyin al-Haqa'iq », 5/ 29; « al-Bahr al-Ra'iq », 8/ 230; « Majma' al-Anhur », 3/ 533; « al-Durr al-Mukhtar », 6/ 392; « Majma' al-Anhur », 4/ 187; « al-Tajrid » of al-Quduri, 7/ 3692).
The jurists agree that it is not permitted for a Muslim to hire out or sell his house to a Muslim who uses it to sell and drink wine and to gamble: it is an aid to disobedience, according to the word of Allah (Surah 5, verse 2). They then differed over hiring it out or selling it to a disbeliever who sells wine in it or gambles in it. The majority of jurists, the Malikis, Shafi'is, Hanbalis and the two Hanafi companions, held that hiring and selling are not permitted: it is a forbidden deed, and the hire upon it is not valid, like hiring out one's slave for immorality, and an aid to disobedience (Surah 5, verse 2). Shaykh al-islam Ibn Taymiyya, may Allah have mercy on him, said: if he hires it out to him (or sells it) for selling wine in it, making it a church or a fire temple, it is not permitted by any statement; this is the opinion of al-Shafi'i and others, just as it is not permitted to hire out one's slave or servant for immorality (« Iqtida' al-sirat al-mustaqim », 1/ 236; « al-Fatawa al-Kubra », 4/ 494; « Ahkam ahl al-dhimma », 1/ 215).
The Malikis say: a house is not hired out nor sold to be made a gathering place for the wanton or a tavern; the contract is annulled if it took place; if it was executed in whole or in part, the famous position is the obligatory charity of the whole rent to the poor in the case of hire, and of the surplus of the price over the price of the equivalent in the case of sale: one assesses what the price of the house or land is worth to one who will make it a tavern, fifteen, then what it is worth to one who will not, ten, and one gives the extra five as charity; the difference between hire and sale, and the status of the land, are explained as previously (« al-Mudawwana al-Kubra », 11/ 423-424; « al-Sharh al-Kabir » with the hashiya of al-Dasuqi, 5/ 365; « Mawahib al-Jalil », 7/ 424; « al-Taj wa-l-Iklil », 4/ 489; « Tahrir al-Mukhtasar », 4/ 570-571; « Sharh Mukhtasar Khalil », 7/ 22-23; « Manh al-Jalil », 7/ 449; « Mughni al-Muhtaj », 3/ 387; « al-Mughni », 5/ 321; « al-Kafi », 2/ 302; « al-Sharh al-Kabir », 6/ 28; « Iqtida' al-sirat al-mustaqim », 233, 236; « Ahkam ahl al-dhimma », 1/ 215).
Imam Abu Hanifa, may Allah have mercy on him, said: hiring a house for wine to be sold in it is permitted in the sawad, that is, the countryside, for the same reasons as before: the sawad then belonged to the people of the covenant, who are not prevented in their properties, all the more so by hiring; the meaning being that they consented to it; the hire bearing upon the benefit of the house, with no disobedience in it, the disobedience lying in the act of the free hirer: the connection with the lessor is therefore cut, like selling the slave woman to one who will not free her or who will abuse her. The Hanafi jurists specify: this concerned the sawad of Kufa, most of whose inhabitants were people of the covenant; in our sawad, the banners of Islam are manifest and they cannot do so there either: this is the sounder opinion (« al-Hidaya », 4/ 94; « Tabyin al-Haqa'iq », 5/ 29; « al-Bahr al-Ra'iq », 8/ 230; « Majma' al-Anhur », 3/ 533; « al-Durr al-Mukhtar », 6/ 392; « Majma' al-Anhur », 4/ 187; « al-Tajrid » of al-Quduri, 7/ 3692).
The jurists differ over the Muslim working in the church: building it, maintaining it, sweeping it or the like: is it permitted to him or not? The majority of jurists, the Malikis, Shafi'is and Hanbalis, held that it is not permitted for a Muslim to work for the people of the covenant in the church as a carpenter, builder or otherwise: it involves aid to disobedience, belongs to the characteristics of their false religion, and constitutes a hire involving the veneration of their religion and their rites.
The Malikis say: it is not permitted to hire a Muslim to build a church, nor to hire oneself out to sweep a church or the like, nor to herd pigs, nor to press wine for them; the Muslim is disciplined, unless excused by ignorance. If it is discovered before the work, the contract is dissolved; if it was executed, the wage is taken from the disbeliever and given to the poor, as discipline for the Muslim, unless he is excused by ignorance: then it is not taken from him (« al-Mudawwana », 11/ 433; « Mawahib al-Jalil », 7/ 424; « al-Bayan wa-l-Tahsil », 5/ 154; « al-Sharh al-Kabir », 5/ 361; « al-Dhakhira », 5/ 398; « Sharh Mukhtasar Khalil », 7/ 20; « Tahrir al-Mukhtasar », 4/ 567; « Manh al-Jalil », 7/ 498).
The Shafi'is say: hiring a Muslim to build a church or the like is not valid, due to the sanctity of its construction, even if he consented to it; it is not permitted for a Muslim to work as a builder, carpenter or otherwise in their churches of prayer (« al-Umm », 4/ 213; « al-Najm al-Wahhaj », 5/ 335; « Hashiya of al-Umayra », 3/ 171).
Ibn al-Qayyim summarizes the madhhab of Ahmad (may Allah have mercy on him): the hiring of a Muslim of himself to a man of the covenant is of three types:
All this when the work does not involve the veneration of their religion and their rites; if it involves it, it is not permitted: Ahmad explicitly stated it in the narration of Ishaq ibn Ibrahim: a builder asked him: "may I build a tomb for the Magians?" He said: "do not build for them." Al-Shafi'i, may Allah have mercy on him, said in the jizya chapter of « al-Umm »: I disapprove of the Muslim working as a builder or carpenter in their churches of prayer. Abu al-Hasan al-Amidi, may Allah have mercy on him, said: it is not permitted to hire oneself out for building tombs and the like, as a single narration (« Ahkam ahl al-dhimma », 1/ 208-209). Ibn Taymiyya said: Ahmad's madhhab on hiring for tomb work, according to al-Amidi: not permitted, as a single narration, for the contracted benefit is forbidden; likewise hiring to build a church, a fire temple or a monastery, like hiring to write their altered books (« Iqtida' al-sirat al-mustaqim », 1/ 244). The Hanafis say: if the Muslim hires himself to a man of the covenant to press wine for him, it is disapproved; if he hires himself to work in the church and maintain it, there is no harm, for there is no disobedience in the deed itself (« al-Hidaya », 4/ 94; « Tabyin al-Haqa'iq », 5/ 29; « al-Bahr al-Ra'iq », 8/ 231; « al-Muhit al-Burhani », 5/ 221; Ibn Abidin, 6/ 391).
The majority of jurists, the Malikis, Shafi'is, Hanbalis, together with Abu Yusuf and Muhammad, held that it is not permitted for a Muslim to be hired to carry wine, whether for a Christian or for a Muslim: "the Prophet cursed ten categories concerning wine, counting among them the one who carries it"; it is an aid to disobedience, wine being carried to be drunk; a hire upon disobedience is not permitted (Surah 5, verse 2); it is a contract of hire upon a forbidden deed, like the basis of hiring a boy for sodomy or a slave woman for fornication.
« al-Mudawwana » reports, on the hire concerning wine: a Muslim hired himself to a Christian to carry wine for him on his mount or on himself: Malik said: "this hire does not stand; I see nothing of the hire he named, nor of its like, little or much; for Malik said to me concerning the Muslim who sells wine: I do not see that he be given of its price little or much; the hire has with me the same status." He was asked: likewise if he hires out his shop to a Christian who sells wine in it? Malik said: "there is no good in that, and I hold the hire invalid." Ibn al-Qasim, may Allah have mercy on him, said: I hold that every Muslim who hires out himself, his boy, his mount, his dwelling, his house or anything he owns, in anything of the wine, receives nothing of that hire, little or much; it is handled like the price of wine, whether he received or not (« al-Mudawwana al-Kubra », 11/ 424-425; « al-Ishraf », 3/ 222-223, no. 1072).
The Shafi'is say: hire upon forbidden benefits is not permitted, like hiring a man to carry wine for purposes other than pouring it out; according to the Prophet's saying: "Allah cursed wine and the one who carries it"; the carrying being forbidden, the benefit is forbidden, as with carrion and blood: no consideration is taken for it. If he is hired to carry wine in order to pour it out, the hire is valid, for pouring it out is obligatory; likewise carrying forbidden wine to move it is permitted, like transporting carrion to the dump. As it is unlawful to take a wage for what is unlawful, it is unlawful to give it, except out of necessity (« al-Bayan », 7/ 288-289; « Mughni al-Muhtaj », 3/ 387-388). Ibn Qudama, may Allah have mercy on him, said: it is not permitted to hire oneself to carry wine to one who will drink it, nor to carry a pig or carrion for that; Abu Yusuf, Muhammad and al-Shafi'i said so; Abu Hanifa permits it, for the deed does not fix the wine, as shown by the fact that if he carries it, it is lawful, and if he intends pouring it out or discarding the carrion, it is permitted.
It is narrated from Ahmad concerning the one who carried a pig, carrion or wine for a Christian: "I disapprove of his consuming his hire, but the porter is paid his hire; if it is for a Muslim, it is worse." Al-Qadi, may Allah have mercy on him, said: this is understood as hire for pouring it out; for drinking it is dreaded and the wage unlawful; but this interpretation is far-fetched, in view of his words "I disapprove of his consuming his hire" and "if it is for a Muslim, it is worse." The madhhab is contrary to this narration: it is a hire for a forbidden deed, and is therefore not valid, like fornication; the Prophet cursed the carrier and the one carried to (« al-Mughni », 5/ 320; « al-Sharh al-Kabir », 6/ 29; « Iqtida' al-sirat al-mustaqim », 244, 246; « Ahkam ahl al-dhimma », 1/ 585).
Imam Abu Hanifa, may Allah have mercy on him, permits the hire of a Muslim to carry wine for a man of the covenant: the hire bears upon the carrying, which is not a disobedience, as shown by the permissibility of carrying it to pour it out or make vinegar of it; nor is it a cause of it, the cause being drinking, which occurs through the act of a free agent; the carrying not being a necessity of drinking, it is a bare cause without ruling, as if he were hired to press, cut or pick the grapes. The hadith is understood as carrying with the intention of drinking; we then say: it is a disobedience, and consuming his wage is disapproved. Hire for pressing wine is not permitted, the disobedience being accomplished by the deed itself. According to this disagreement, if a man of the covenant hires a mount or a ship from a Muslim to transport wine on it, or hires him of himself to herd pigs for him, the wage is good with Abu Hanifa, and with the two (Abu Yusuf and Muhammad): no. If a man of the covenant hires another man of the covenant for that, it is permitted, including herding pigs for him: wine and the pig are for them valued property, like the sheep and the camel for us (« al-Mabsut », 16/ 38-39; « Bada'i al-Sana'i », 4/ 190; « al-Muhit al-Burhani », 8/ 84; Ibn Abidin, 6/ 392).