Islamic Fiqh > Companies and leases > Ijara (leasing) > Disagreements between lessor and tenant
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Updated on 25 September 2026 at 6:57 PM
This chapter deals with the disagreement between the lessor and the lessee. The contract of lease (ijara) resembles other contracts: the two contracting parties may agree upon the lease and differ over something else, such as the rent, or the occurrence of damage, or the nature of the work, or otherwise, as will now be set out, by Allah's help.
If the lease has been concluded validly and the lessor and the lessee differ over the amount of the rent before the benefits have been enjoyed, the lessor saying one thousand and the lessee two thousand, or the lessor saying two thousand and the lessee one thousand, and neither of the two has any proof: they take mutual oaths (tahalaf), according to the Hanafis, the Shafi'is and the Hanbalis.
The reason is that the lease is a variety of sale: the two parties therefore take oaths when they differ; and if the exchange of oaths has been established in one category by the hadith, it is established in all categories by the implication of consensus, since no one can judge between them.
Moreover, the oath taken before the benefit has been enjoyed conforms to the foundational principles (usul): the oath, in the foundations of the Law, is the duty of the one who denies, and each of the two is here in a position of denial in one respect and in a position of claim in another. The lessor, indeed, claims from the lessee an increase in the rent, which the lessee denies; and the lessee claims from the lessor the obligation to pay him the rent he asserts, which the lessor denies. Each of them is therefore in a position of denial in one respect, and the oath is the duty of the one who denies in the foundations of the Law. This is why the exchange of oaths takes place, before receipt, in the sale of a determinate object, and it takes place here before receipt, since the two parties differed before the benefit was enjoyed.
If the two parties take oaths before any part of the term or of the work has elapsed, the lease is annulled and each of them takes back his property; and whichever of the two backtracks has his associate's claim imposed upon him. Backtracking is, indeed, either a concession or an acknowledgment; and the consideration as well as its substitute both admit concession and acknowledgment.
Likewise, if they differ after a period of work or of dwelling has elapsed, they take mutual oaths according to the Shafi'is and the Hanbalis. When the contract is then annulled after the term, or part of it, has elapsed, the named rent lapses and the rent of the like (ujrat al-mithl) becomes due, as if the two parties had differed over the price after the object sold had perished. Whether the rent of the like is less than what the lessor claimed or more: it represents, indeed, the value of a thing destroyed.
The Hanafis said: if the disagreement comes after the lessee has already enjoyed part of the benefit, by dwelling for part of the term in the rented house, or by covering part of the distance on the hired mount, the word, for the past, belongs to the lessee, together with his oath; they take mutual oaths, and the lease is annulled for the remainder.
A contract over benefits can, indeed, be concluded moment by moment, as those benefits arise little by little: every portion of the benefit is contracted upon at its beginning, and what remains of the term or of the distance stands alone under the contract, so that the two parties take oaths concerning it. This is unlike the partial perishing of the object sold, for which Abu Hanifa holds that no exchange of oaths is established: the sale, indeed, covers a single whole, namely the object as it stands, and no part of the object sold is contracted upon separately at its beginning; it is the whole that is contracted upon by a single contract. When annulment becomes impossible to the extent of the perished part, it lapses for the remainder.
If the disagreement comes after the time of the lease has elapsed, or after the distance for which he hired has been covered, they do not take mutual oaths: the word belongs to the lessee concerning the amount of the compensation, together with his oath, and no oath lies upon the lessor. The exchange of oaths, indeed, entails annulment, and benefits that have been extinguished cannot bear the annulment of the contract, so that no exchange of oaths is established.
This is, in a manifest way, the foundation of the view of Abu Hanifa and Abu Yusuf: just as the existence of the object sold conditions, in the chapter of sale, the operation of the exchange of oaths, to the point that it is not established upon an object sold that has perished, so here the benefits are extinguished, and therefore no exchange of oaths. Muhammad, however, requires a distinction between the object sold that has perished and benefits that have been extinguished.
The reason for his distinction is that benefits do not possess value in themselves according to our foundation: they acquire value only through the contract. When the lease is annulled by the exchange of oaths, the benefits remain consumed without a contract: they are no longer valued, and therefore no exchange of oaths is established. This is unlike objects, which have value in themselves: when the sale is annulled by the exchange of oaths, the object remains valuable in itself in the buyer's hand, and its value becomes due from him. If the word is given to the lessee, it is because he is the party indebted: whenever the dispute bears upon a debt, the word belongs to the debtor.
Whichever of the two produces proof (bayyina), judgment is given according to it, by consensus: a claim cannot, indeed, stand against evidence.
If both of them produce proof, three views have been reported.
al-Shirazi (may Allah have mercy on him) said: the view of suspension is not tenable, for contracts are not suspended; nor is the view of division tenable, for the two parties dispute a single contract, and a contract cannot be divided.
Abu al-Abbas, for his part, put forward another view: if the disagreement bears upon the duration or upon the amount of the rent, judgment is given according to the proof that entails the increase, as if a proof testified that so-and-so owes another one thousand, and a proof that he owes him two thousand. This view is erroneous: the testimony of one thousand, indeed, does not negate the increase owed, so that no contradiction exists between it and the second proof; whereas here one of the two proofs negates what the other attests, for once the contract has been concluded upon one of the two considerations, it is no longer permitted to conclude it upon the other: the two proofs are therefore contradictory (al-Muhadhab 2/314).
When the contract is annulled after the term, or part of it, has elapsed, the named rent lapses and the rent of the like becomes due, or the proportional rent if part has elapsed; whether the rent of the like is less than what the lessor claimed or more, for it represents the value of a thing destroyed.
The Hanafis said: if both of them produce proof, the lessor's proof has precedence, for it establishes the increase in the rent as a right in his favor (Bada'i' al-Sana'i' 4/218-219; see also Majma' al-Anhar 3/365-366; al-Hawi al-Kabir 7/471-472; al-Muhadhab 1/409-410 and 2/314; al-Bayan 7400; Rawdat al-Talibin 4/64; al-Ashbah wa-l-Naza'ir 363; Asna al-Matalib 4/413-414; al-Mughni 5/325; al-Kafi 2/331; al-Furu' 4/338; Mughni al-Muhtaj 5/114; al-Insaf 6/80; Kashshaf al-Qina' 3/274 and 4/48; Matalib Uli al-Nuha 3/135).
The Malikis said: the word belongs to the hired workman (al-ajir) concerning the amount of the wage if he brings plausibility with his oath, whether his master brings it or not. If the master alone brings plausibility, the word belongs to him with his oath; if he does not bring it, he swears, and the workman receives the wage of the like.
This amounts to the case where both of them would backtrack and judgment would be given in favor of the one who swore against the one who backtracked. This applies when the work is in the craftsman's hands; if his master has possession of it, or if the craftsman only works it in his master's house and cannot take it out, or if it is a matter of building, the word concerning the amount of the wage belongs to the master, if the craftsman is not alone in bringing plausibility; otherwise it belongs to the craftsman (al-Sharh al-Kabir with Hashiyyat al-Dasuqi 5/421; Hashiyyat al-Sawi on al-Sharh al-Saghir 9/92-93; al-Bahja fi Sharh al-Tuhfa 2/305).
It is stated in al-Bahja fi Sharh al-Tuhfa: the word, in the case where the two parties differ over the amount of the rent after the term of the hire has expired for the hirer, is conditional upon plausibility, for plausibility is taken into consideration after the loss of all the benefits or of part of them; it is conditional upon his swearing, and upon his not having paid anything.
If the hirer brings no plausibility, but the lessor alone is plausible, and the hirer backs away from the oath; or if he paid ten, for instance, and claims, after the term has expired, that the hire amounted to only five of it, the other five being a loan or a deposit: the word belongs to the lessor, who asserts that the whole was hire, with his oath if he brings plausibility; if he does not, he swears, and the hire of the like becomes due (al-Bahja fi Sharh al-Tuhfa 2/289-290, in an adapted form).
Mayyara al-Fasi (may Allah have mercy on him) said: when they differ over the amount of the hire, the lessor asserting ten and the hirer eight, three cases arise.
al-Lakhmi (may Allah have mercy on him) said in his Tabsira: if they agree that the hire is for a determinate object and differ over its amount, the dweller saying fifty and the other one hundred, then, if they differ before the dwelling, they take mutual oaths and the contract is annulled; if they differ after a year has passed, the word belongs to the dweller, with his oath, if he brings what resembles it; if they differ after six months have passed, the word belongs to the dweller, with his oath for the past, and they take mutual oaths and the contract is annulled for the remainder, provided he has not paid.
It is stated in al-Muttiyya: if he dwelt six months, and the lessor, having received fifty, says: fifty of the year's rent remain due to me; and the hirer says: the fifty that were paid cover the whole year, then they take mutual oaths, the fifty paid are apportioned over the year, and he owes twenty-five for the period he dwelt, on the basis of his acknowledgment. It is then considered: if the house bears division, and no harm befalls the hirer in dwelling in half of it, he dwells in it for the remaining twenty-five, for the lessor acknowledges not having delivered the rest of the dwelling; if harm befalls him in that, the remainder of the term is annulled.
For clarification: the nazim stated without restriction, in his words "and after the expiry of the term, the word belongs to the hirer", a rule which is in fact restricted to his bringing plausibility, as has been presented in al-Lakhmi's words (Sharh Mayyara 4/160-161; Tabsirat al-Lakhmi 11/5074).
If the owning lessor and the lessee differ over the duration, the lessor saying: I rented it to you for one year for one thousand; and the lessee saying: you rather rented it to me for two years for two thousand, the jurists have differed: does the word belong to the owning lessor, to the lessee, or do they take mutual oaths?
The Hanafis said: if they differ before the lessee deals with the hired thing, over the duration, the lessor claiming, for instance: you hired for one month, and the lessee claiming: I hired for two months; or over the distance, the lessor claiming that he hired out his mount for Damascus and the lessee claiming that he hired it for Homs: the claim of whichever of the two establishes proof is accepted. If both of them establish proof, judgment is given according to the lessee's evidence; if they are unable to establish it, they both swear, the lessor being made to swear first, and whoever backtracks is bound by his backtracking. If both of them swear, the judge annuls the lease.
If the lessor and the lessee differ after the term of the lease has expired, that is, after the whole benefit has been enjoyed, or after the lessee has become able to enjoy it in full, no exchange of oaths takes place over the rent: the exchange of oaths, indeed, was instituted for the annulment of the contract, and after the benefit has been enjoyed, the annulment of the contract is no longer conceivable, the contract standing in place of the existence of the object sold. The word, with the oath, then belongs to the lessee, for it is he who denies here the increase in the rent. As for a disagreement over the duration, no exchange of oaths takes place either, but the word, with the oath, belongs to the lessor (Bada'i' al-Sana'i' 4/219; Majma' al-Anhar 3/365-366; Durrar al-Hukkam 4/507-508; al-Hindiyya 4/478).
The Malikis said: if the lessor and the hirer differ over the duration, one of two cases obtains. The first: the lessor has collected the rent, that is, has received it: the word belongs to him with his oath, whether the hirer has dwelt or not. The second: he has not collected it, and two subcases arise, for their disagreement comes either after the dwelling, that is, after its beginning: the two parties then take mutual oaths, the hire is annulled for the remainder of the term, and the hirer pays the rent of the period he dwelt on the basis of what he swore to; and it is likewise annulled if both of them backtrack. If one of the two swears and the other backtracks, the word belongs to the one who swore.
Or their disagreement comes before the dwelling, the case remaining one in which the hirer has not paid the rent: the hire is then annulled if both of them backtrack or if they swear; if one of the two swears and the other backtracks, the word belongs to the one of the two who swore.
The nazim alluded to this in his verses: "If they differ before the dwelling, annulment applies, whether they backtrack or swear; and the word on that belongs to the one who swears."
It is stated in al-Muttiyya: if they differ over the duration of the hire, whether the lessor has collected or not: if he has collected, he is credited, with his oath, whether the hirer has dwelt or not; if he has not collected, one of two cases obtains: either they are still at the contract, before the hirer dwells, and they then take mutual oaths; if they swear or backtrack, the hire is annulled between them, and if one backtracks and the other swears, the word belongs to the one who swore; or it is after half a year of dwelling: they take mutual oaths, the contract is annulled for the remainder of the term, and the hirer owes for the period he dwelt on the basis of his acknowledgment, if the months are equal in value.
It is stated in al-Nawadir of al-Wadiha: the two parties are bound, for the payment of the rent, by the custom of the people. If they differ over the duration: if the lessor has collected, he is credited with his oath, whether the hirer has dwelt or not; if he has not collected, and the parties are still at the contract, before the dwelling, they take mutual oaths, and the hire is annulled if they swear or backtrack; if both backtrack, the word belongs to the one who swore; if they differ after he has dwelt a year or part of it, they take mutual oaths, the remainder of the term is annulled, and he owes for the period he dwelt on the basis of his acknowledgment.
Mayyara (may Allah have mercy on him) said: a clarification is to be drawn from their statement, in the case where he has dwelt part of the term and owes rent on the basis of his acknowledgment, which the nazim indicates by his words "then he pays what he owes, for which he swore". The hypothesis, for instance, is that he hired and paid forty dirhams, which is not disputed, the dispute bearing upon the duration: the lessor says that the forty are for four months, at ten dirhams per month, and the hirer that the forty are for five months, at eight dirhams per month. Such is the nazim's scenario, in which the distinction is made according to whether the hirer has paid the rent or not.
When they take mutual oaths and annul the contract, the hirer pays for the period he dwelt at the rate of eight dirhams per month: the disagreement thus bears upon the duration of the hire, but it entails a disagreement over its amount. That is why they said: he owes it at the rate of what he acknowledged and swore to, namely eight per month, and not according to the lessor's claim, which is ten per month. If the hypothesis were that the two parties agree that each month is worth such an amount, and they differ over whether he hired for five or for four months, and he dwelt two months, for instance, they would say: he owes, for the two months, what they entered upon and agreed upon, and they would not say "at the rate of what he acknowledged". And Allah knows best (Sharh Mayyara 4/159, 161).
The Shafi'is said: if the two contracting parties differ over the duration, they take mutual oaths; when they do so, the contract is annulled, and the lessee owes the rent of the like for what he has enjoyed (Rawdat al-Talibin 4/64). The Hanbalis, for their part, hold that the word belongs to the owner, for he is the one who denies the increase: his word therefore prevails over what he has denied (al-Mughni 5/325; al-Sharh al-Kabir 6/136; Kashshaf al-Qina' 4/48; Matalib Uli al-Nuha 3/650).
If the lessor and the lessee differ at once over the rent and over the duration, the lessor claiming, for instance, that he rented this house for one month for two hundred dirhams, and the lessee claiming that he rented it for two months for two hundred dirhams, or for one hundred dirhams, the scholars have differed over this.
The Hanafis said: if the two parties differ at once over the rent and over the duration, the lessor's evidence prevails concerning the increase of the rent, and the lessee's evidence concerning the increase of the duration. Thus, if the lessor claims: I rented you this shop of mine for one year for twenty dinars, and the lessee claims: you rented it to me for two years for fifteen dinars, and both of them establish proof of their claim, judgment is given that the rent of the said shop is twenty dinars for two years.
If both of them are unable to establish proof, the exchange of oaths takes place between them, swearing being begun with the one who made his claim first; and if both of them claimed at the same moment, the judge may begin with whichever of the two he wishes, or designate by drawing lots the one with whom to begin.
But if the disagreement comes after the term of the lease has passed, that is, after the enjoyment of the full benefit, the word belongs to the lessee, and no exchange of oaths takes place. If the two parties differ, in the manner described, after part of the term of the lease has passed, or after the lessee has covered part of the road, the exchange of oaths takes place; if both of them swear, the lease is annulled for the remaining term, while for the elapsed term the word belongs to the lessee (Durrar al-Hukkam 1/609, 4/481, 507-508).
The Malikis said: if he hired and paid forty dirhams, the lessor saying: the forty are for four months, at ten dirhams per month, and the hirer saying: the forty are for five months, at eight dirhams per month, one of two cases obtains: the lessor has collected the rent, that is, has received it, and the word belongs to him with his oath, whether the hirer has dwelt or not; or he has not collected it, and two subcases arise, for their disagreement comes either after the dwelling, that is, after its beginning: the two parties then take mutual oaths, the hire is annulled for the rest of the term, and the hirer pays the rent of the period he dwelt on the basis of what he swore to; and it is likewise annulled if both backtrack. If one of the two swears and the other backtracks, the word belongs to the one who swore. Or their disagreement comes before the dwelling, the case remaining one in which the hirer has not paid the rent: the hire is then annulled if both backtrack or if they swear; if one swears and the other backtracks, the word belongs to the one of the two who swore. And when they take mutual oaths and annul the contract, the hirer pays for the period he dwelt at the rate of eight dirhams per month.
Mayyara (may Allah have mercy on him) said: the disagreement bears upon the duration of the hire, but it entails a disagreement over the amount of the rent; that is why they said: he owes it at the rate of what he acknowledged and swore to, namely eight per month, and not according to the lessor's claim, which is ten per month. If the hypothesis were that the two parties agree that each month is worth such an amount, and they differ over whether he hired for five or for four months, and he dwelt two months, for instance, they would say: he owes, for the two months, what they entered upon and agreed upon; and they would not say "at the rate of what he acknowledged". And Allah knows best (Sharh Mayyara 4/159, 161).
The Hanbalis said: if the lessor and the lessee differ, the lessor saying: I rented it to you for one year for one dinar, and the lessee replying: you rather rented it to me for two years for one dinar, they differ here at once over the amount of the consideration and over the duration: they therefore take mutual oaths, for no agreement was reached between them upon a duration against a consideration, so that the situation becomes as if they differed over the amount of the rent while the duration was agreed upon.
If the owner says: I rented it to you for one year for one dinar, and the dweller replies: you rather rented it to me for safekeeping for one dinar, Ahmad said: the word belongs to the owner of the house, unless the dweller has proof; for the dwelling of the house has indeed been obtained from the dweller, and the enjoyment of its benefit has indeed taken place, and it remains the property of its holder: the word over his property belongs to him. The foundation, however, is that the dweller did not hire for safekeeping: the word therefore belongs to the one who negates it (al-Mughni 5/325; al-Sharh al-Kabir 6/136; Kashshaf al-Qina' 4/48; Matalib Uli al-Nuha 3/650-651).
The Shafi'is said: if the two contracting parties differ over the amount of the benefit or over the amount of the rent, and there is no proof, they take mutual oaths, for it is a contract of exchange resembling sale; when they take oaths, the contract is annulled, and the lessee owes the rent of the like for what he has enjoyed (al-Muhadhab 1/409; Rawdat al-Talibin 4/64; al-Bayan 7/400).
If the lessor and the lessee differ over the return of the leased object, the lessee claiming to have returned it and the lessor denying it and saying: you did not return it, the scholars have differed over whose word prevails: is the lessor's word accepted, or the lessee's, or is a distinction made in the leased object between what can pass out of his sight and what cannot?
Abu Yusuf and Muhammad, the two companions of the Hanafi school, as well as the Hanbalis according to the madhhab, held that the word belongs to the lessor, namely that it was not returned to him; for the lessee took possession of the object for his own benefit: his word concerning the return is therefore not accepted, like the borrower's, except with proof of the return (Bada'i' al-Sana'i' 4/211; al-Jawhara al-Nira 3/341-342; Durrar al-Hukkam 1/598; al-Mughni 4/259; al-Sharh al-Kabir 4/432).
This is also the Shafi'i position concerning the return of the leased object, except that they differ regarding the common hired workman (al-ajir al-mushtarak). They said: if they differ over the return, the lessee claiming it and the lessor denying it, the word belongs to the lessor, namely that it was not returned to him; for the lessee took possession of the object for his benefit: his word concerning the return is not accepted, like the borrower's.
If the common hired workman and the one who hired him differ over the return of the object upon which he was hired to work, the workman claiming to have returned it and the other denying it: if we hold that the workman guarantees the object by taking possession of it, his word concerning the return is not accepted, for he is a guarantor, and the guarantor's word is not accepted concerning the return, like the borrower's and the usurper's. If we hold that he does not guarantee the object by taking possession of it, is his word concerning the return accepted? Two views have been held, as with the paid agent (al-Muhadhab 1/409-410; al-Bayan 7/400).
Imam Abu Hanifa, as well as the Hanbalis according to one view, held that the word belongs to the lessee, for he is trustworthy (amin), and the word belongs to the trustee, together with his oath. Thus, if someone asks the tailor for the garment he gave him to sew, and the tailor claims to have returned it to him, his word is credited, according to Abu Hanifa, without proof; whereas, according to the two companions, his word is not credited without evidence.
al-Kasani (may Allah have mercy on him) said: if the workman is a specific one, what is in his hands is, according to all of them, a trust, to the point that if it perishes in his hands without his doing, he does not guarantee it. Upon Abu Hanifa's foundation, this is because no work has issued from him that could constitute a cause for the guarantee to be due, the taking of possession having occurred with the owner's consent. Upon the two companions' foundation, this is because the guarantee due from the common hired workman was established by istihsan, for the protection of people's wealth, and there is no need for that in the case of the specific workman: most often, indeed, he comes in person and does not take possession of the wealth, so that treachery is not possible. And Allah knows best (Bada'i' al-Sana'i' 4/211; al-Jawhara al-Nira 3/341-342; Durrar al-Hukkam 1/598; al-Mughni 4/259; al-Sharh al-Kabir 4/432).
The Malikis, for their part, distinguished between what can pass out of his sight, in which case the lessee's word concerning the return is not accepted, and what cannot, in which case his word concerning the return is accepted, unless he received the thing with a proof drawn up for documentation; otherwise his claim is accepted neither for the return nor for the loss. This distinction is an istihsan, and it means that suspicion attaches to what can pass out of his sight, and not to what cannot.
Abd al-Malik (may Allah have mercy on him) said: the craftsman is credited concerning the return, for he is trustworthy, unless he received the thing with a proof: the return without proof then going against common practice, the owner is the one credited (al-Tawdih 7/235; al-Dhakhira 5/454; Hashiyyat al-Sawi on al-Sharh al-Saghir 9/93; Bidayat al-Mujtahid 2/209).
If the lessor and the lessee differ over an aggression against the leased object, the Shafi'is and the Hanbalis held that the word belongs to the lessee, for he is trustworthy, resembling the depositary; and because the foundation is innocence from the guarantee and the absence of aggression.
The Shafi'is said: if the object perishes and the hired workman claims that it perished after the work and that he deserves the wage, while the one who hired him denies it, the word belongs to the latter; for the foundation is the absence of work and the absence of compensation (al-Muhadhab 1/409; al-Bayan 7/400; Asna al-Matalib 2/425; al-Mughni 5/326; al-Sharh al-Kabir 6/137; Mughni al-Muhtaj 5/114).
The jurists have differed over the case in which the tailor and the owner of the garment differ, the owner saying: I ordered you to cut it into a qaba' (cloak), and the tailor saying: you ordered me to cut it into a qamis (shirt). Does the word belong to the tailor or to the owner of the garment?
The Hanafis said: the word belongs to the owner of the garment, with his oath; for the authorization derives from the holder of the garment, and the word concerning the description of the authorization belongs to him. This is why, if the dispute bore upon the authorization to cut as such, the holder of the garment saying: I did not authorize the cutting, his word would prevail; and likewise if he said: I did not authorize the cutting into a qamis. The tailor guarantees the value of the garment; and if the owner of the garment wishes, he takes the garment and is given the wage of the like, without exceeding the named amount (Bada'i' al-Sana'i' 4/219; al-Hidaya 3/249; al-'Inaya 12/457; al-Hindiyya 4/96).
The Malikis and the Hanbalis held that the word belongs to the tailor, that is, to the craftsman.
As for the Malikis, Ibn Abd al-Barr (may Allah have mercy on him) said (chapter on the judgment concerning what is given to workers): Malik was asked about someone who handed a washer a garment to be dyed, and who dyed it, the holder of the garment saying: I did not order you this dyeing, and the washer replying: you rather ordered it me. The washer is credited; the tailor is in the same position; and so is the goldsmith; and they swear to it, unless they produce a work of a kind they are not in the habit of performing: their word is then not admitted; let the holder of the garment swear, and if he refuses to swear, the dyer swears.
Abu Umar (may Allah have mercy on him) said: the scholars have differed over this question and its like: some of them said, like Malik, that the word belongs to the workers; others, that the word belongs to the owner of the garment. The foundation in this matter is to know the claimant and the defendant: the word belongs, in all cases, to the defendant, if the claimant has no proof.
Whoever makes the owner of the garment the claimant justifies it thus: he acknowledged having authorized the dyer to dye the garment, and then claims that the latter did not carry out what he ordered him; and likewise the tailor, whose authorization to cut the holder of the garment acknowledged, and who then claims that he did not cut it with the cutting he ordered, so that the worker's labor would be rendered void. Whoever makes the owner of the garment's word prevail rests it on this: the dyer introduced into the garment of another what its holder had not granted him, and he has no proof: he becomes the claimant, while the owner of the garment becomes the denier of his claim; the word therefore belongs to him, according to their consensus that if the two agreed that he hired him for a work, and the worker then claims to have carried it out, and the holder of the wealth says: he did not carry it out, the word belongs to the holder of the work (al-Istidhkar 7/214).
al-Shafi'i (may Allah have mercy on him) said in the Book of the disagreement between Ibn Abi Layla and Abu Hanifa: if they differ over a garment, the holder saying: I ordered you to cut it into a qamis, and the other replying: rather into a qaba', Ibn Abi Layla said: the word belongs to the tailor, for the two agreed upon the cutting. Abu Hanifa said: the word belongs to the owner of the garment, for the two did indeed meet, since he ordered him to cut, and he did not carry out his work; as if one had hired him to transport a thing and he claimed: I transported it; that holds only with its holder's acknowledgment.
al-Shafi'i said: this is the more likely of the two views, and both are admissible. al-Muzani (may Allah have mercy on him) said: it is as al-Shafi'i said; no disagreement is known among them over the fact that whoever introduces a change into what he does not own is held for his change, and that a claim does not avail him: the tailor acknowledged that the garment belongs to its holder, he introduced a change and he makes a claim, and this acknowledgment stands against him: if he establishes his claim with proof, otherwise his associate swears, and he guarantees what he introduced into his garment.
Abu Umar said: when the claimant's affair is ambiguous as regards the defendant, the latter must be considered: does he take or does he repel? does he seek an entitlement from another, or does he negate it? The seeker is always the claimant, and the repelling denier is the defendant. Hold fast to this foundation and you will be right, Allah willing (al-Istidhkar 7/214).
The Hanbalis said: if the tailor says to the owner of the garment: you authorized me to fashion it into a qaba', and the owner replies: I rather authorized you to fashion it into a qamis, the word belongs to the tailor; or if the tailor says: you authorized me to fashion a woman's qamis, and the owner replies: I rather authorized you to fashion a man's qamis, the word belongs to the tailor, with his oath; for the worker and the one who hired him agreed upon the authorization and differed over its description: the word therefore belongs to the one who was authorized, like the mudarib who would say: you authorized me to sell to women; and because the two agreed that the cutting belongs to the tailor, and the apparent is that he did what belonged to him, their difference bearing upon whether liability is entailed against him, of which the foundation is the absence.
The tailor is entitled to the wage of the like, for his authorized act is established; he is not entitled to the named amount, for it is not established by his mere claim. The dyer and the like are in the same position, such as the goldsmith and other hired workers: if the dyer and the holder of the garment differ over the color of the dye, the latter saying: you authorized me to dye it black, and the holder replying: I rather authorized you to dye it red, the dyer's word is accepted, and he is entitled to the wage of the like (al-Mughni 5/63; al-Sharh al-Kabir 6/131; Mughni al-Muhtaj 5/113; al-Insaf 6/79; Kashshaf al-Qina' 4/46; Sharh Muntaha al-Iradat 4/71).
As for the Shafi'is, the question involves, according to them, a considerable detail, set out by al-'Imrani the Shafi'i: if a garment is handed to a tailor who cuts it into a qaba', the holder of the garment saying: I ordered you to cut it into a qamis, and the tailor replying: you rather ordered me to cut it into a qaba', al-Shafi'i mentioned it in Ikhtilaf al-'Iraqiyyin, and al-Muzani transmitted it, saying: two views relate to it. The first: the word belongs to the tailor, which is Ibn Abi Layla's view. The second: the word belongs to the owner of the garment, which is Abu Hanifa's view. al-Shafi'i said: this is the more likely, and both are admissible; for the tailor claims the wage and negates the liability, while the owner of the garment claims the liability and negates the wage. I accept neither of the two, and I return them both to the foundation of the Sunna: they take mutual oaths.
It is stated in al-Imla': if a garment is handed to a dyer who dyes it black, the holder of the garment saying: I ordered you to dye it red, and the dyer replying: you rather ordered me to dye it black, the two parties take mutual oaths, and the dyer owes the indemnity (arsh) for the deficiency. Our companions have differed over the question along three paths. The first: most of them said that it involves two views: that of the word of the tailor, and that of the word of the owner of the garment. The second path: some said that it involves three views: the word of the tailor; the word of the owner of the garment; or the mutual exchange of oaths. The third path: Shaykh Abu Hamid (may Allah have mercy on him) said: what most resembles the madhhab is that it involves a single view, namely that the two parties take mutual oaths; for al-Shafi'i mentioned the two views in Ikhtilaf al-'Iraqiyyin and criticized them, and when he mentioned the exchange of oaths, he did not criticize it.
If we say that the word belongs to the tailor, the justification is that he owns the cutting by their agreement, and the apparent is that he did only what belonged to him: how, then, could he swear? Ibn al-Sabagh (may Allah have mercy on him) said: he swears by Allah: you did not authorize me to cut it into a qamis, and you did authorize me to cut it into a qaba'. Shaykh Abu Hamid said: he swears that the owner of the garment authorized him to cut it into a qaba'. If he swears, no liability falls upon him, for he has established by his oath that he was authorized in what he did.
Is he entitled to a wage? Two views have been held. The first: he is not entitled to it, for he annihilates by his oath the liability claimed against him, and it is not permitted that he establish by his oath a right in his own favor. The second: he is entitled to it, for we have judged by his oath that he was authorized to cut, and he therefore deserves the wage. If we say so, what wage does he deserve? Shaykh Abu Ishaq (may Allah have mercy on him) said: two views. The first: the wage he claims as named in the contract, for we have accepted his word that the owner of the garment authorized him, and what the authorization requires therefore becomes due to him. The second: he is not entitled to the named amount, but to the wage of the like; for if we accepted his word, nothing would prevent him from claiming one thousand, whereas the wage of the like is one dirham.
Shaykh Abu Hamid, al-Mahamili and Ibn al-Sabagh mentioned that he is entitled to the named amount, as a single view. Shaykh Abu Hamid said: I have seen none of our companions say that he is entitled to the named amount, although analogy requires it. I say: what the madhhab requires is that Shaykh Abu Hamid, and those who say he is entitled to the wage of the like and not to the named amount, meant the case where what he claims of the named amount exceeds the wage of the like; but if what he claims of the named amount is less than the wage of the like, he is entitled to it, as a single view, if we say he is entitled to a wage; for one cannot be indebted to him for more than what he claims.
If we say that the word belongs to the owner of the garment (it is stated in al-Ta'liq that this is the sounder view), its justification is the saying: proof lies upon the claimant, and the oath upon the one who denies; and the tailor claims the authorization from the owner of the garment; and if they had differed over the authorization as such, the word would have belonged to the owner of the garment; and likewise when they differ over its description.
Ibn al-Sabagh said: in my view, it suffices him to swear that he did not authorize him to cut it into a qaba', without needing to establish his authorization for the qamis; when he swears, the liability falls upon the tailor, for he has established by his oath that the tailor was not authorized to cut it, and the cutting without authorization entails liability. Two views have been held concerning the amount of the liability. The first: there is due from him the difference between the value of the garment intact and its value cut into a qaba', for he committed an aggression by cutting it into a qaba', and the indemnity for the cutting is therefore due from him. The second: there is due from him the difference between its value cut into a qamis and its value cut into a qaba', for the cutting into a qamis was authorized.
Is the worker entitled to a wage? Two views. The first: Abu Ali ibn Abi Hurayra (may Allah have mercy on him) said: he is entitled to the wage of the cutting accomplished from the qaba' toward the qamis, for it was authorized. The second, the textual view: he has nothing, for he did not cut it for the qamis: he is committing an aggression from the very outset of the cutting.
If we say that the two parties take mutual oaths, which is Shaykh Abu Ishaq's choice, the justification is that each of the two is at once claimant and defendant: the tailor claims the wage and the owner of the garment denies it; and the owner of the garment claims the indemnity for the cutting and the tailor denies it; they therefore take mutual oaths, like two traders differing over the price.
Accordingly, if one of the two swears and the other backtracks, the judgment is as if we said that the word belongs to the one who swore, and he swears; and if both of them swear, the tailor is not entitled to the wage, for the exchange of oaths entails the lifting of the contract, and sewing without a contract deserves no wage. Is the indemnity for the cutting due from the tailor? Two views. The first: nothing is due from him, for each of the two has negated by his oath what was claimed against him. The second: it is due from him, for the exchange of oaths entails the lifting of the contract, and the cutting without a contract entails the guarantee.
In consequence, concerning the amount of the indemnity, the first two views apply. In every case in which we grant the tailor a wage, the tailor does not reclaim the threads: if they come from the garment, they belong to its owner; if they belong to the tailor, they follow the sewing for which he took the wage.
And in every case in which we say that no wage is due to him: if the garment is sewn with threads belonging to the owner of the garment, or coming from the garment, the owner takes back his garment sewn, and the tailor has no right to unpick the sewing; for he performed upon the property of another a work having no determinate object of his own, so that he has no right to remove it, like the one who moves the property of another from one corner to another: he has no right to bring it back except with the owner's consent. If the threads belong to the tailor, he is entitled to take back his threads, for they are his property; and if the owner of the garment offers him their value, the tailor is not compelled to accept it: it is the tailor's property, whose return destroys nothing of what he holds inviolable, so that taking a compensation for it is not imposed upon him.
If the owner of the garment says: I tie my thread to the end of your thread, so that when I pull my thread, it takes the place of yours, the tailor is not bound to enable him to do so; it is a benefit drawn from his property, and, moreover, access to his thread would thereby be delayed until the other thread settles in its place: he is therefore not compelled to it (al-Bayan on the madhhab of Imam al-Shafi'i 7/400, 404; al-Hawi al-Kabir 7/436; al-Muhadhab 1/410; al-Sharh al-Kabir 5/261).
If the holder of the house and the lessee differ over the expiry of the term, the Malikis expressly stated that the word belongs to the dweller, the lessee.
It is stated in al-Mudawwana al-Kubra: if they differ over the expiry of the term of the lease, the holder of the house or of the mill saying: I rented to you for a year, and the year has elapsed, and the hirer replying: you rather rented to me for a year, and I have dwelt and ground only since two months ago, and the house has now collapsed, the word belongs to the hirer; for the hirer denies having dwelt for more than two months. Ibn al-Qasim (may Allah have mercy on him) said: thus Malik answered me concerning the duration: the word belongs to the dweller (al-Mudawwana al-Kubra 11/415).
Mayyara (may Allah have mercy on him) said: if they differ over the term of the hire, the holder of the house saying: it has expired, and the hirer replying: it has not yet expired, the word belongs to the dweller, with his oath, if there is no proof between them; and he is entitled to return the oath to the holder of the house (Sharh Mayyara 2/162).
It is stated in al-Bahja: the word belongs to the hirer when they have agreed upon the rent and upon the duration, and differ only over the expiry of the latter. Know that disagreement over the expiry of the term can only arise from disagreement over its starting point. The word belonging to the hirer, with his oath, obtains according to whether he brings what resembles it or not: if the lessor brings plausibility, his word stands with his oath; if not, he swears, and the hire of the like becomes due for the past.
If the disagreement arises before any part of the term has passed, they swear and annul the contract, plausibility not being taken into consideration, since no benefits have been lost. If each of the two establishes proof, the lessor's proof is given precedence, on account of the earlier date of its writing. And this ruling is general in hire and sale (al-Bahja fi Sharh al-Tuhfa 2/190).
As for the Shafi'is: Ibn Hajar al-Haytami was asked about the case in which the two parties to a sale differ over the expiry of the term, and the parties to a lease over the expiry of the duration of the lease: do they take mutual oaths, or is one of the two credited? He answered: if the disagreement over the expiry arises from a disagreement over the length of the term, while they agree upon the time of the contract, they take mutual oaths; if they differ over its starting point, the claimant of continuation is credited, for he holds the foundation (al-Fatawa al-Fiqhiyya al-Kubra 2/271).
The word, concerning the receipt as well as concerning the kind, belongs to whoever witnessed it, together with his oath, in view of the circumstances of the time.
The Malikis said: if the two contracting parties differ, whether over the receipt of the rent or over its kind, the word belongs to whichever of the two has testimony from the time, with his oath. The circumstances of the time mean everything appropriate to it: in the disagreement over the receipt of the rent, nearness or remoteness in time is taken into consideration; and in the disagreement over the kind, the custom of the place at that time is likewise taken into consideration.
Mayyara (may Allah have mercy on him) said: the question of the disagreement over the receipt is dealt with in al-Watha'iq al-Majmu'a: if the holder of the house comes against the hirer claiming that he did not receive the rent after the months of the year have elapsed, and he comes forward promptly, it is for the dweller to establish that payment; otherwise the holder of the house swears and receives it from him, or returns the oath to him, and he swears and stands discharged. If he comes after a long time, the dweller swears and stands discharged from the rent. The same applies to craftsmen when they come forward claiming the wage for what was made by them.
As for the disagreement over the kind, it is stated in al-Muqarrab: whoever rents a house against dirhams or dinars without specifying whether dinars or dirhams: the currency in use in hiring in that place is considered, and the two parties are bound to it.
It is stated in al-Bahja: the word, in the disagreement over the receipt as in the disagreement over the kind, belongs to whoever witnessed it, with his oath, in view of the circumstances of the time. If they differ over the kind of rent, the lessor claiming that it is in dinars and the other in goods, the custom of the country is considered for such a hire, whether in dinars or in goods: whichever of the two has the testimony of the country's custom is credited, with his oath.
As for the disagreement over the receipt, nearness and remoteness are considered: if the rent is monthly or yearly, and he establishes by proof the payment of the rent of a specified month or of a specified year, that constitutes a discharge for the months and years preceding it, as has passed concerning the renting of houses in the third clarification; if he has paid the rent of no specified month nor of any particular year, the word belongs to the hirer for the past, except for the last month and the last year: the word then belongs to the holder of the house, if he comes forward promptly.
If this is prolonged until about a month has passed for the months, and a year for the years, the hirer is credited, with his oath, as Ibn Salamun said, and likewise in al-Muttiyya: and upon it the ruling is applied. Likewise, the coming forward of the craftsmen after the return of the object, and their subsequent claim of their wage: a distinction is made therein between nearness and remoteness; and the practice in Fes is that the lessor's word is accepted concerning the last three months whose rent he says he did not receive, with his oath, as in al-Majalis al-Miknasiyya, and his word is not accepted beyond that. The nazim's words "in view of the circumstances of the time" mean that what is appropriate is considered in everything: in the receipt, nearness and remoteness in time; in the kind, the custom of the country at that time. And Allah knows best.
Clarification: if they did not specify, in the contract of hire, the time of payment, and they differ, the hirer saying: hasten at the beginning of the month, and the lessor saying: at its end, the two parties are bound by the custom of the country, as has been said: "he pays in advance if the term was specified, or by a condition, or by custom", and so on. If there is no custom, he must pay day by day, at its rate (al-Bahja fi Sharh al-Tuhfa 2/190-191).
The Hanafis said: if they differ over the kind of the wage, the lessee saying: I hired this mount to go to such a place for ten dirhams, and the other replying: for one dinar, if their disagreement comes before the benefits have been enjoyed, they take mutual oaths; when they do so, the lease is annulled, and whichever of the two backtracks has his associate's claim imposed upon him; whichever of the two establishes proof, judgment is given according to his proof, for a claim cannot stand against evidence.
If both of them produce proof, the lessor's proof prevails, for it establishes the rent as a right in his favor, whereas the lessee's proof does not establish the rent as a right in his favor: the lessor's proof is therefore more worthy of acceptance.
If they differ, the lessor saying: I hired out to you this mount to go to al-Qasr (the palace) for one dinar, and the lessee saying: to go to Kufa for ten dirhams, and they produce proof, the outcome is that it is to Kufa for one dinar and five dirhams; for the disagreement concerning al-Qasr bore upon the consideration, and the lessor's proof is therefore the stronger, for what we have said: the lease to al-Qasr for one dinar is established, and the lessee then claims, from al-Qasr to Kufa, for five, al-Qasr being at the halfway point, while the lessor denies this lease: the proof establishing the lease is therefore stronger than the one negating it.
Ibn Sima'a narrated from Abu Yusuf, concerning a man who rented from another a house for a year, and they differed, and the lessee established proof that he had rented eleven months of it for one dirham, and one month for nine, while the holder of the house established proof that he had rented it for ten: he said: I take the holder of the house's proof, for he claims an excess of rent over eleven months, and has established proof of it: his proof is therefore accepted. As for the twelfth month, the lessee acknowledged to the lessor the excess of rent in what he claimed: if he credits him on that, so be it; otherwise the excess lapses by his denial (Bada'i' al-Sana'i' 4/218-219; al-Mabsut 16/7; al-Hindiyya 4/476).