Islamic Fiqh > Companies and leases > Ijara (leasing) > The duration of the ijara contract in fiqh
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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 second part of the pillars of ijara deals with the duration of the lease contract, the lessee's enjoyment of the benefit himself or through a third party, the hiring of the Quran and books, the woman who hires out her person, the leasing of cultivable land, undivided property, the breeding male, fruit trees and milking animals. The positions of the four schools are reported with their proofs, their figures and their classical references.
One hired for a work at a determined wage keeps the right to that wage even if he completes the work only after the expected deadline: the wage remains his in full, for the hirer only consented to that fee with accelerated payment, and he must not take back the worker's money without right (Mawaheb al-Jalil 7/406-407 ; al-Sharh al-Kabir with al-Dasuqi's gloss 5/350-351 ; al-Taj wa-l-Iklil 4/475 ; Tahbir al-Mukhtasar 4/558-559 ; al-Furuq of al-Qarafi 4/34 ; al-Qawanin al-fiqhiyya p. 182 ; Sharh Mukhtasar Khalil 7/12 ; Hashiyyat al-Sawi 9/10).
The jurists of the four schools agree that ijara is valid for one year or less, and they differ: is it valid for more than one year? The majority of scholars, the Hanafis, Malikis and Shafi'is according to the most correct view, as well as the Hanbalis according to their madhhab, hold that ijara is valid for any duration, long or short, as long as the thing remains until that duration. Proof: the word of Allah, reporting the word of Shu'ayb (peace be upon him):
"On condition that you serve me for eight years; and if you complete ten, that will be from you."
Surah Al-Qasas, 27
The law of those who came before us is law for us, as long as no proof abrogates it. What is valid for one year is valid for more, like sale, marriage and musaqat (the irrigation contract); and estimating the term at thirty-one years is an arbitrary judgment without proof, no better founded than a longer or shorter duration.
When one hires for several years, it is not necessary to specify the share of each year in the rent, as the Malikis do for the months of the year, and this is the most apparent view among the Shafi'is and Hanbalis: the rent is apportioned over the value of the years' benefits, for the benefit is like goods in sale; just as a sale of several goods does not require appraising the price of each, so it is here. Likewise one may hire a person for a year for a known wage without specifying what is due for each day, week or month.
The Malikis however say: if the years or months differ in value (a year whose rent differs from another, a month from another month, days from other days), such as the houses of Mecca or the houses of the Nile flood in Egypt, and an impediment occurs depriving the occupant of part of the hired period, reference is made to the value and not to the designation, whether the contract is silent on it or stipulates return to the designation.
In sum: if the lessee did not specify what is due for each year or each month, occupied part of the period and an impediment deprived him of the rest: if the years or months do not differ in value, reference is to the designation (he occupied half, he owes half the rent; a third, a third); if they differ in value, reference is to the value. And if the parties stipulate return to the designation while the years differ in value, the contract is defective. Example: a house by the bay rented for a year for one hundred; the lessee dwells in it three months during the days of the flood, then an impediment occurs: the rent of the house for three months is appraised; if it is seventy, Malik deducts thirty from the lessee; and if the rent of the house for those three months equals one hundred, nothing is deducted.
Against the most apparent view of the Shafi'is, the share of each year must be specified: benefits vary with the years, and one is not safe from the contract's rescission, so that one no longer knows what one is entitled to. The reference for knowing how long each thing remains is in general custom and people of experience, and this varies from one thing to another: among the Shafi'is, the tree is validly hired for a hundred years or more; the house for thirty years; the riding animal for ten years; and so for everything according to what suits it, the experts estimating that it remains for that duration. The minimum duration of renting a house for dwelling is one day, no less; and the minimum for cultivation is the period during which the crop ordinarily remains. This is roughly the view of the majority: reference is to custom and to what usually obtains as the thing's lifespan.
The Shafi'is in one view, and some Hanbalis, hold that the duration of ijara does not exceed a year: need is deflected within it, ijara being a contract on the known permitted for need, and need is deflected within a year, a period that gathers the seasons and in which crops and fruits complete. A third view among them: no more than thirty years, half the ordinary lifespan, after which things generally change. A fourth view: ijara is valid for a duration exceeding the thing's ordinary survival, for its principle is permanence; al-Damiri says the three imams ruled by it (al-Najm al-Wahhaj 5/369 ; al-Hidaya Sharh al-Bidaya 3/231-232 ; al-Ikhtiyar 3/62 ; al-Jawhara al-Nira 3/232, 325 ; Mukhtasar al-Waqaya 2/110-111 ; Tabyin al-Haqa'iq 5/106 ; al-Bahr al-Ra'iq 8/4-5 ; al-Ishraf 3/224 no. 1073 ; Mawaheb al-Jalil 7/404 ; al-Sharh al-Kabir with al-Dasuqi's gloss 5/350-351 ; al-Taj wa-l-Iklil 4/473 ; Tahbir al-Mukhtasar 4/557-558 ; al-Furuq of al-Qarafi 4/34 ; al-Qawanin al-fiqhiyya p. 182 ; Sharh Mukhtasar Khalil 7/11 ; Hashiyyat al-Sawi 9/9 ; al-Hawi al-Kabir 7/364 ; al-Muhadhdhab 1/391 ; Rawdat al-Talibin 4/25 ; al-Iqna' of al-Chirbini 2/350 ; Mughni al-Muhtaj 3/407 ; Nihayat al-Muhtaj 5/348-349 ; al-Najm al-Wahhaj 5/368-369 ; al-Dibaj 2/479 ; al-Mughni 5/253 ; al-Sharh al-Kabir 6/48 ; al-Ifsah of Ibn al-Hubayra 2/28-29 ; Sharh al-Zarkashi 2/178 ; al-Mabdu' 5/84-85 ; Kashshaf al-Qina' 4/3, 6).
This dispute concerns property other than the waqf. As for the waqf, they differ: does it have the status of full ownership, permitting its hire for any duration however long, or not? The madhhab of the Shafi'is and Hanbalis is that the waqf has the status of ownership: its hire is valid for any duration, however long. For the Shafi'is: unless it contradicts the endower's condition; if the endower stipulated that the property not be rented for more than two years, renting it for more in a single contract is not permitted, and if the contract exceeds what the endower stipulated, it is void in its entirety (Rawdat al-Talibin 4/25 ; al-Najm al-Wahhaj 5/368-369 ; Hashiyyat Umayra on Kanz al-Raghibin 3/194 ; al-Fatawa al-fiqhiyya al-kubra 3/144 ; al-Mabdu' 4/85 ; Kashshaf al-Qina' 4/4).
The Hanafis according to the chosen view, and some Shafi'is, hold that long hire of waqfs is not permitted, lest the tenant claim ownership of them. The Hanafis say: the hire of waqf lands is not valid for more than three years, nor that of houses, shops (dakakin) and the like for more than a year, unless interest requires hiring longer: the judge may then rent them longer, but the supervisor (nazzar) may not do so without the judge's authorization, unless the endower expressly permitted hiring beyond that duration when beneficial. If the endower says, for example: "This house may not be rented for more than a year, unless its rental benefits the poor beneficiaries," the supervisor may then rent it for more than a year on the basis of this condition. The reason for forbidding hiring the waqf beyond these durations is that the lessor is not the endower; as for the endower, he may exceed these durations as he wishes (al-Hidaya Sharh al-Bidaya 3/231-232 ; al-Ikhtiyar 3/62 ; al-Jawhara al-Nira 3/232, 325 ; Mukhtasar al-Waqaya 2/110-111 ; Tabyin al-Haqa'iq 5/106 ; al-Bahr al-Ra'iq 8/4-5 ; al-Ashbah wa-l-Naza'ir p. 195 ; Ibn Abidin 4/387).
Al-Qadi and the administrator among the Shafi'is: the rulers agreed not to rent for more than three years, lest the waqf perish; al-Rafi'i says this agreement is not consistent. In the Amali al-Sarakhsi: the hire of a waqf for more than a year is prevented if no need of its development bears on it; al-Nawawi says it is strange, and al-Damiri that the Imam reported it as a view having no bearing on the waqf dedicated to charitable purposes (Rawdat al-Talibin 4/25 ; al-Najm al-Wahhaj 5/368-369).
The Malikis: if the waqf is constituted for specified persons (such a one and his children), the supervisor may not rent it for more than two or three years, no more, and the rent is not paid in cash. If the waqf is for unspecified persons (the poor, hospitals, bridges, mosques), the supervisor may rent beyond that, four years if it is farmland, one year no more if it is a house or the like, whether the waqf is for specified persons or not. If he rents longer, the contract stands without rescission if he is the supervisor, according to Ibn al-Qasim, as long as no necessity requires a longer hire; and if the waqf is ruined, it is permitted to rent it to finance its rebuilding, even for forty years or more as necessity requires, which is better than its loss. As for an entitled remainderman (mustahiqq) who rents it: hire up to ten years is permitted, because the gharar is light and the property reverts to him; no difference is made between land and house. Its form: one who endowed a waqf for Zayd then 'Amr: 'Amr may rent it from Zayd for ten years, whether the reversion is by habis or by ownership. This holds when the endower stipulated no duration; otherwise one acts by the condition, and as long as necessity, for the waqf's benefit, does not require more. This occurred in the time of the qadi Ibn Badis in Kairouan: a habis house for the poor fell into ruin with no means of repair; he issued a fatwa: rent it for many years, however long they run, on condition of repairing it from its rent, and he refused to allow its sale; this is the relied-upon view.
Al-Dasuqi (may Allah have mercy on him): the supervisor (nazzar) designates one who is among the beneficiaries; as for anyone else, he may rent for more, for at his death the hire is not extinguished, unlike the entitled person whose death extinguishes the hire, as stated in the 'Abaq and the Kabir Khash. Our shaykh al-Adawi says: he has not seen it stated as a text, and the apparent meaning of their words is unrestrictedness; consider (Hashiyyat al-Dasuqi with al-Sharh al-Kabir 5/478, 488 ; al-Taj wa-l-Iklil 4/592 ; Mawaheb al-Jalil 7/509 ; Sharh Mukhtasar Khalil 7/99-100 ; Tahbir al-Mukhtasar 4/667).
The jurists of the four schools agree: the lessee may enjoy the benefit himself or through his like, by loan or by hire, for he owns the benefit by the contract and may therefore enjoy it himself or through his deputy.
If he rents a house or a shop, he may dwell in it himself, house in it whomever he wills and do in it whatever customary use he wills. However, neither he nor his deputy (borrower or sublessee) may enjoy the benefit in a more harmful manner, nor in a manner causing harm different from that of the thing contracted (the maqud 'alayh), without the lessor's permission: he does not therefore lodge in the house or shop a blacksmith, a fuller or another craftsman causing greater damage to the hired thing, for such activities contain a manifest harm that weakens the building and damages it; he has use of it only according to the purpose designated in the contract.
Likewise, if he rents land to sow barley, he may not sow in it what is more harmful. If he hires a mount to ride, he may have it ridden by his like or by someone lighter, but not by someone heavier: the contract implies enjoyment of a benefit appraised for such a rider; he may therefore enjoy it himself and through his deputy, and he is entitled to lesser enjoyment (part of his right), but not to greater enjoyment (beyond the contract).
In sum: any work that ruins or weakens the building does not become the lessee's right by the mere contract, except by stipulation; what does not weaken becomes his right by the mere contract.
The jurists differ: if it is stipulated that the lessee enjoy the benefit personally, must this condition be honored, or is it void, with no obligation to fulfill it?
According to the Hanbali madhhab and one Shafi'i view, the contract is valid and the condition void: it contradicts the contract's purport, whose purport is ownership, and whoever owns a thing enjoys it himself or through another; the condition contradicting that is void and does not void the contract, for it affects the lessor's right in no way; it is therefore annulled and the contract remains on its purport.
According to the Shafi'i madhhab and one Hanbali view, the stipulation is not valid and the contract is void, for it contradicts its purport, as if one stipulated that he not enjoy the benefits. According to another Shafi'i view and a Hanbali possibility, the condition is valid (both contract and condition intended): the lessee owns the benefits from the lessor, so he does not own what the lessor did not consent to, and the lessor may have a purpose in restricting enjoyment to the lessee personally.
The Hanafis say: if the lessor stipulates that the lessee dwell alone, the lessee may nevertheless house others with him, for a large number of inhabitants causes no harm to the house; on the contrary it increases its upkeep, for houses fall to ruin when left unoccupied; this restriction being useless, it is void (Tabyin al-Haqa'iq 5/113 ; al-Bahr al-Ra'iq 8/11 ; Durr al-Hukkam 1/515).
The majority of jurists: if the lessor leaves the choice free in renting a house, a shop or land, the lessee says "I will do in it or sow in it what I will," and the lessor accepts, it is valid and the lessee sows what he wills. They also agree: if he rents land to sow barley, he may sow barley and what is less harmful to the land; the same for the house and the shop.
They differ over the lessee who rents land for barley and sows in it what is more harmful, without the lessor's permission: the Malikis, the Shafi'is in one view and the Hanbalis according to the madhhab hold that he owes the owner the wage of the barley and the value of the excess harm, for he took benefit beyond what was contracted and owes as much as he exceeded; like one who hires a mount from Baghdad to Hulwan and rides it on to Rayy: the hire is from Baghdad to Hulwan, and he owes the like wage from Rayy to Hulwan.
Example: one who rents land for wheat; what would its rent have been with wheat? Say ten; and with cotton? Say fifteen: the owner receives, in addition to the designated rent, five, for wheat having been designated, it was not determined; when he sows what is more harmful, he enjoyed the benefit and an excess, and so he owes the designated rent plus the like wage of the difference. The Shafi'is in another view, and the Hanbalis in one view, give the owner the like wage for the whole period, for he transgressed beyond the thing contracted and owes the guarantee of the like, like one who rents land to cultivate and cultivates another. A third Shafi'i view: the owner has the choice between taking the designated rent and the like wage of the excess, or the like wage for all.
The jurists then differ over the lessee subletting the house or land to the very one who let it to him. The majority of jurists, the Malikis, Shafi'is and Hanbalis, hold it valid: the lessee may rent it to his lessor as to anyone else, for what can belong to someone other than its owner can also belong to its owner, like goods; and because it is a contract on a benefit whose acquisition against compensation is valid, thus in favor of whoever can validly acquire such a one, like the contract concluded by a third party.
The Hanafis hold that the lessee may not rent the house or land to the one who let it to him, before or after taking possession, for it leads to a contradiction of rulings: delivery is owed against the rent, so in subletting it delivery becomes due to him while he owes it, which is a contradiction. The Hanafi masters differ: does it rescind the first contract? The most correct view is that the contract dissolves.
Fifth issue: the jurists agree that the lessor may re-let the thing at the same rent or a lower one; they differ: may he re-let it dearer? The majority of jurists, the Malikis, Shafi'is and Hanbalis according to the madhhab, hold that the lessee may sublet the hired thing for more than he rented it, whether he made repairs, built, or not: a contract valid on capital is valid with an increase, like the resale of property after possession, or like a new construction with no counterpart in the rent.
The Hanafis hold that he may re-let dearer than the first rent if he added something to the house, such as digging a well, plastering it, repairing its doors or part of its walls; if he added nothing, the hire is valid, but if the second rent is of the same kind as the first, the surplus must be given in charity; if of another kind, the surplus is lawful for him. As for the hire's validity there is no doubt: an increase in a contract where equality of counterparts is not required does not prevent validity, and so it is here. As for the charity of the surplus when the second rent is of the same kind, it is because the surplus is profit on what is not guaranteed: benefits do not enter the lessee's guarantee; proof: if the hired thing perishes to the point of being unusable, the loss falls on the lessor, likewise if a usurper seizes it; the surplus is therefore profit on the unguaranteed, which the Messenger of Allah forbade; if there is an addition, the profit corresponds to the addition and leaves the category of profit.
Likewise in hiring a mount: if he added harness, bridles or the like, the surplus is lawful for him; if he fed it, it is not, for no part of the rent corresponds to the fodder. There is, from Imam Ahmad, a narration like the Hanafi view: if he added a construction, the increase is permitted, otherwise not, the increase being not profit but the counterpart of the construction, with the obligation of charity, without distinguishing a second rent of the same kind or not. According to a third narration of Imam Ahmad, it is permitted only with the lessor's permission; according to a fourth, re-letting with an increase is not permitted in any case, for fear of profiting from what is not guaranteed (Bada'i al-Sana'i 4/206, 216 ; al-Hidaya Sharh al-Bidaya 3/235, 238 ; al-Jawhara al-Nira 3/327, 329 ; al-Lubab 1/473-474 ; Mukhtasar al-Waqaya 2/110-111 ; Tabyin al-Haqa'iq 5/106 ; al-Bahr al-Ra'iq 8/11 ; al-'Inaya 12/358-359 ; al-Hindiyya 4/425 ; al-Ishraf 3/220-221 no. 1068-1069 ; Bidayat al-Mujtahid 2/172 ; al-Fawa'id al-Dawwani 2/116 ; al-Hawi al-Kabir 7/463 ; al-Muhadhdhab 1/403 ; al-Najm al-Wahhaj 5/370, 373 ; Mughni al-Muhtaj 3/394, 408 ; Nihayat al-Muhtaj 5/350-351 ; al-Dibaj 2/464, 480 ; Kanz al-Raghibin 3/195-196 ; al-Mughni 5/277, 282 ; al-Sharh al-Kabir 6/72, 75 ; Sharh al-Zarkashi 2/32 ; al-Mabdu' 5/92 ; al-Insaf 6/49, 52 ; Kashshaf al-Qina' 4/17, 22 ; Sharh Muntaha al-Iradat 4/44, 46 ; al-Ifsah 2/333-336 ; Jawahir al-'Uqud 1/217 ; Ibn al-Qayyim's gloss on the Sunan of Abu Dawud 9/298-299).
The majority of jurists, the Malikis, Shafi'is and Hanbalis, state the condition that the benefit be valuable (mutaqawwim): for if the tree were felled, its hire for that use would be permitted; so it is when it stands, the benefit being obtained in the same way in both cases: what is permitted in one is permitted in the other. It is a tree: its hire for that use is permitted like the felled tree's; it is a sought benefit whose enjoyment is possible while the thing remains: the contract is therefore valid on it as on the felled tree; it is a thing from which this benefit can be drawn, like ropes, wood and the cut tree.
The jurists differ over hiring the Mushaf and books for reading: the Hanafis, Ibn Habib among the Malikis, and the Hanbalis according to the madhhab hold that hiring the Mushaf is not permitted. The Hanafis: the benefit of the Mushaf is its perusal and recitation from it; yet perusal and recitation from another's Mushaf are free (mubah); hire is the sale of benefit, and the free cannot be an object of sale, like the free goods that are firewood and hay. Likewise hiring books to read poetry or fiqh in them: the benefits of notebooks are perusal, and perusal of another's notebook is free without fee; it is as if he hired the shade of a wall outside his house to sit in. If one hires a book to read and reads, no fee is due, for lack of a contract of exchange.
The cause with the Hanbalis is the veneration of Allah's speech and His Book, which they refuse to barter, to demean by a price in sale or a fee in hire. The cause with Ibn Habib: reading and perusal are the hirer's own act, and no fee is given for one's own act; the price in sale is for the paper and the writing, and in hire for the Quran itself, which has no value.
The Malikis according to the famous view, the Shafi'is and the Hanbalis hold that hiring the Mushaf is permitted for whoever wishes to read it: since its sale is permitted, its hire is too; it is a free benefit for which loan is permitted, so hire as well, like other books. But it is not, say the Malikis, among the noble morals nor the deeds of religious people. As for the other books whose sale is permitted, their hire is permitted with the Malikis, Shafi'is and Hanbalis: a free, necessary benefit for which loan is permitted, so hire, like the rest of benefits; one needs to read books, memorize them, copy from them, receive dictation and narration from them, and other sought benefits. With the Hanafis, hiring other books for reading is not permitted, as previously stated (Bada'i al-Sana'i 4/189, 192 ; Tabyin al-Haqa'iq 5/125 ; Majma' al-Anhar 3/534 ; Hashiyyat Ibn Abidin 6/96 ; al-Muhit al-Burhani 8/103 ; al-Hindiyya 4/425, 454 ; al-Dhakhira 5/41, 44 ; Jami' al-Ummahat p. 435 ; al-Furuq 4/9-12 ; Mawaheb al-Jalil 7/421 ; al-Taj wa-l-Iklil 4/485-486 ; al-Sharh al-Kabir 5/362-363 ; Tahbir al-Mukhtasar 4/567-568 ; Sharh Mukhtasar Khalil 7/21 ; Bidayat al-Mujtahid 2/169 ; Hashiyyat al-Sawi 8/468-469 ; al-Muhadhdhab 1/394-395 ; al-Bayan 7/293 ; Rawdat al-Talibin 4/8-9, 79 ; al-Najm al-Wahhaj 5/327, 330 ; Mughni al-Muhtaj 3/384-385 ; Nihayat al-Muhtaj 5/307-308 ; al-Dibaj 2/459-460 ; Kanz al-Raghibin 3/168-169 ; al-Mughni 5/318-319, 332 ; al-Sharh al-Kabir 6/33 ; al-Kafi 2/301 ; al-Insaf 6/27 ; Kashshaf al-Qina' 3/660 ; Sharh Muntaha al-Iradat 4/20-21, 25 ; Matalib Uli al-Nuha 3/306).
Attached to this are the question of the midwife (nufasa') and that of hire concerning the cutting of a sound, honored limb, such as extracting a sound tooth (Bada'i al-Sana'i 4/187 ; al-Furuq 4/9-12 ; Mawaheb al-Jalil 7/421 ; al-Taj wa-l-Iklil 4/486 ; al-Sharh al-Kabir 5/362 ; Tahbir al-Mukhtasar 4/568 ; Sharh Mukhtasar Khalil 7/20 ; Hashiyyat al-Sawi 8/468 ; al-Muhadhdhab 1/394-395 ; Rawdat al-Talibin 4/10-11 ; al-Najm al-Wahhaj 5/330, 336 ; Mughni al-Muhtaj 3/384-385 ; Nihayat al-Muhtaj 5/309, 313 ; al-Dibaj 2/460-461 ; Kanz al-Raghibin with Umayra's gloss 3/169, 171 ; al-Mughni 5/332 ; al-Sharh al-Kabir 6/33 ; al-Kafi 2/301 ; Kashshaf al-Qina' 3/663 ; Sharh Muntaha al-Iradat 4/30 ; Matalib Uli al-Nuha 3/306).
The jurists agree: hiring a woman's services is permitted with her husband's permission, and he can no longer prevent her from what the hire contract requires. They then differ: may she hire out her person as one hires a thing, for nursing or service (or a post in the state, for example), without her husband's permission? The majority of jurists, the Hanafis, Malikis, Shafi'is according to the most correct view, and Hanbalis, hold that she may not hire out her person without her husband's authorization, neither for nursing nor for service: the Shafi'is and Hanbalis state it in text; the Hanafi and Maliki texts are specific to nursing, and I have found no view of theirs on service or hire in general.
Here are their texts. The Shafi'is according to the most correct view: hiring a married woman for nursing, or for anything leading to unlawful seclusion, is not permitted without the husband's permission, for her times are consumed by his right and she cannot fulfill what she committed to; if she hires herself out, the husband has the option to rescind the hire. Against the most correct view with them: the hire is permitted, for its object differs from the object of marriage: the husband has no right over her service nor over her milk; on this view the husband may nonetheless rescind to protect his right. It is also said: if he is absent on a long journey, or a child, and she hires herself for work in his dwelling that ends before his return or his readiness, it is permitted; and if he returns during the period, the hire is rescinded for the remainder.
Al-Ghazali's objection (her benefits are owed to him by the marriage contract) is rejected: the husband did not acquire the benefits; he acquired only the right to benefit from them, an unattainable thing. According to one view, the husband has no objection to raise. If she hires herself while having no husband, then marries during the period, the hire stands and the husband cannot prevent her from fulfilling her commitment: her benefits were alienated by a contract prior to her marriage, as if she had hired herself with his permission; but he enjoys her in her free times; if he knew, he has no option; if he did not know, he has the choice between maintaining the marriage and dissolving it, the deprivation of daytime enjoyment being a defect justifying dissolution; and if the tenant obtains from her the daytime enjoyment, the husband's option does not fall, the tenant being a volunteer in this handing-over, and volunteering does not remove an acquired option.
This concerns the hire of the person; if she undertook a work binding on her responsibility (dhimma), the contract is valid even without the husband's permission; and if she finds the opportunity and works, she earns the wage. The husband may hire his wife for any work, and the wife may hire her husband; she may prevent him from enjoying her during the work time, but she loses her maintenance (al-Hawi al-Kabir 11/446 ; al-Muhadhdhab 1/160 ; Rawdat al-Talibin 4/16 ; al-Najm al-Wahhaj 5/336-337 ; Mughni al-Muhtaj 3/384-385 ; Nihayat al-Muhtaj 5/313 ; al-Dibaj 2/460-461 ; Kanz al-Raghibin with Umayra's gloss 3/171). The Hanbalis: the wife's hiring out of her person for nursing, service or craft after marriage is not valid without her husband's permission, for it is a contract that causes the loss of a right established by an earlier contract, like the hire of a thing already hired. With the husband's permission, the hire is valid and the contract binding, the right being common to both and not leaving them. If she hires herself for a work binding on her responsibility, the contract is valid, her responsibility able to bear it; if she performs the hired work herself, or someone stands in her place, she earns the wage.
If she hired herself (or her guardian hired her during her minority) and then married, the hire contract is valid and the husband has neither the right to rescind it nor to prevent her from nursing until the end of the period: her benefits were alienated by a contract prior to his marriage, as if one had bought a slave girl already hired or a lent house whose moving out would take long. If the child she nurses sleeps or is occupied, the husband may enjoy her, the obstacle to his right having gone; the child's guardian cannot prevent the husband from enjoying her; and the husband may enjoy his wife hired for nursing even if it harms the milk, conjugal union being a right established by the marriage contract that does not fall by a doubt, as if the guardian had consented to it. The husband has no right to dissolve the marriage while ignorant that she was hired. The claim of one who, after marrying, alleges she hired herself before the marriage contract to the benefit of this same husband is not accepted without proof, for she is suspect and the default is the nonexistence of what she claims; likewise her claim, after hiring herself, that the hire is void is not accepted without proof.
The Hanafis: hiring a wet nurse for a known wage is valid, according to the word of the Most High:
"If they nurse for you, give them their wages."
Surah At-Talaq, 6
There is consensus of the community on it, and practice has run thus through the ages without denial. Remuneration by her food and clothing is valid according to Abu Hanifa; Abu Yusuf and Muhammad say it is not permitted, the wage being unknown, as if one hired her with them for cooking and baking. Abu Hanifa answers that the uncertainty here does not lead to dispute: usage has established liberality toward wet nurses out of compassion for children, without petty haggling, giving her what she asks and conforming to her intent; and uncertainty that does not lead to dispute does not prevent validity, like the sale of a qafiz taken in bulk from a large vessel of food, unlike cooking and baking where uncertainty leads to dispute through the haggling and pressure that occur there.
The husband is not barred from conjugal union: it is his right, which the tenant cannot annul, the right being established by marriage before the hire and subsisting after; but the tenant may prevent the husband from entering his house, for the dwelling is his. The husband may rescind the hire if he did not know of it, whether he disapproves of his wife being hired (a man of standing) or not according to the most correct view, for he can prevent her going out and prevent the child from entering her place; nursing and night vigils weaken her and take away her beauty, so it is permitted for him to forbid it, as he forbids her voluntary fasting. But if the marriage is established by their confession, he cannot rescind the hire, for the two of them are not believed to the tenant's detriment.
If she falls ill or becomes pregnant, the hire is rescinded: the milk of the pregnant or sick woman harms the child, and nursing harms her too; the choice therefore belongs to her and to them, to ward off harm from her and from the child; it is a hire, and hire is rescinded by excuses.
If one hires his own wife to serve him each month for a determined wage, it is not permitted: the house service is her duty before Allah, according to what is reported: the Messenger of Allah (peace and blessings of Allah be upon him) apportioned the tasks between Ali and Fatimah (may Allah be pleased with them both), assigning what is inside the house to Fatimah (may Allah be pleased with her) and what is outside to Ali (may Allah be pleased with him); it would therefore be a hire for an obligatory act, and that is not permitted; moreover she herself benefits from the house service, and hire for work from which the hired one benefits is not permitted.
It is likewise not permitted to hire the wife to nurse her own child: it would be a hire for the child's service, the milk entering only incidentally; it is a hire on a thing that is her duty before Allah. The wife is entitled to maintenance from her husband, and the nursing fee follows the rule of maintenance: she cannot therefore take two maintenances from her husband; but if the child has property and she is hired to nurse this child from the child's property, it is permitted, for she has no maintenance claim on the child: no double maintenance. If one hires, for his child, a relative within the forbidden degrees (mahram) who has custody of him, it is permitted: house service is not her duty, and she has no maintenance claim on the child's father; and it is permitted to hire the wife to nurse the child he has by another: the service of another's child is not her duty.
If the wife hires her husband to serve her in the dwelling for a determined wage, it is permitted: house service is not obligatory on the husband; it is a hire on a thing not obligatory for the hired one; likewise if she hires him to pasture her sheep, the tending of sheep not being obligatory on the husband (Bada'i al-Sana'i 4/192 ; al-Ikhtiyar 3/70-71 ; al-Jawhara al-Nira 3/364, 366 ; Tabyin al-Haqa'iq 5/127-128 ; al-'Inaya 12/400).
The Malikis: hiring a woman to nurse the child is permitted, by the Quranic text and the necessity that calls for it, whether the wet nurse's fee is in cash or in food. If the woman hires herself for nursing without her husband's permission, he may rescind because of the harm reaching him, whether he has a child or not, and he may approve it. If the husband learns of it only after divorcing her, he cannot rescind. The madhhab: the noble woman who hires herself to nurse another's child is bound by the hire, and her father cannot rescind it; it is said: he can. If she hired herself without his permission and he did not learn of it, while she was under his authority, until after a period, the wage of what has passed is hers, the husband has no share of it, and he may rescind for the future (Mawaheb al-Jalil 7/407 ; al-Taj wa-l-Iklil 4/476 ; al-Sharh al-Kabir with al-Dasuqi's gloss 5/351-352 ; Tahbir al-Mukhtasar 4/560 ; Sharh Mukhtasar Khalil 7/13).
The majority of jurists, the Malikis, Shafi'is and Hanbalis, lay down as a condition for land rentable for cultivation that cultivation be possible in it through permanent access to water, and that it not be saline (sabikha), that is, unproductive; it is said: that which does not produce at all. If water reaches it permanently from a spring, a well or a river, even a small one, or from the customary rain, or from snow water accumulated on a mountain in sufficient quantity, its hire for cultivation is valid if it is not saline, according to the majority of scholars, the Malikis, Shafi'is according to the madhhab, and Hanbalis. If it is saline and unproductive, or if water does not reach it permanently and the customary rain does not suffice, its hire for cultivation is not valid. Any land whose hire for cultivation is not valid may be rented to dwell in, to settle in, to gather wood in or to tether the animals (al-Dhakhira 5/411 ; Mawaheb al-Jalil 7/421 ; Tahbir al-Mukhtasar 4/568 ; Rawdat al-Talibin 4/11, 13 ; al-Najm al-Wahhaj 5/332, 334 ; Mughni al-Muhtaj 3/385-386 ; Nihayat al-Muhtaj 5/310 ; al-Dibaj 2/460-461 ; Kanz al-Raghibin with Umayra's gloss 3/170 ; Kashshaf al-Qina' 3/663 ; Sharh Muntaha al-Iradat 4/30 ; Matalib Uli al-Nuha 3/616).
The Hanafis: the land must be fit for cultivation, so that a saline or barren land cannot be rented. If it is fit for cultivation during the period but not at the time of the contract, because of a passing impediment (cutting of water, winter time or another obstacle on the verge of disappearing), its hire is permitted. There is no harm in renting land for cultivation before its watering season if it is customarily watered in such a period. If water suffices for part of it, the lessee has the choice: rescind the hire entirely or keep it, the rent being then due proportionally to what he watered. If one hires while cultivation is currently impossible (need of irrigation, of the canals' water turn, or of the water's arrival), the hire is valid if cultivation becomes possible during the contract period, otherwise not: like hiring in winter for nine months when cultivation is not possible in winter, it is valid since possible within the period; but if exploitation is impossible in itself (saline land), the hire is void. In winter hire, the rent corresponds to the whole period, not only to the exploitable part; it is said: to the exploitable part. The hire of land is not limited to cultivation: land is rented for cultivation as for the rest of its benefits (al-Bahr al-Ra'iq 7/305 ; Bada'i al-Sana'i 6/178 ; al-Jawhara al-Nira 3/329-330 ; Ibn Abidin 6/29).
Ibn Nujaym (may Allah have mercy on him): this sheds light on the validity of the hires of our time, in which land is rented as winter and summer pasture, binding the rent to the mere handing-over of the land in all circumstances, whether water covers it and makes cultivation possible or not; its validity is beyond doubt, for he did not rent it as cultivable land specifically (so the absence of watering is not rescissory).
The Malikis: hiring land for cultivation with neither permanent nor customary water is not permitted. There has been debate over hiring land with flood water (abundant) whose recession is rare: the madhhab of the Mudawwana is permission, on condition of the water's recession; but the rent may not be paid in advance, even voluntarily. The same applies to the land of the Nile and customary rain: their hire is valid and advance payment is permitted; it is said: no advance payment on rain land. According to one view: it is not permitted. As for flooded land whose water does not customarily recede, the hire contract is not permitted until it is actually clear of water.
The Mudawwana reports, concerning the man who rents a submerged land, and on advance payment: if I rent you this land while it is submerged, on condition that if the water recedes from it, it is mine for the designated rent, and that if the water remains, there is no rent between us: it is permitted if the rent is not paid in advance; if it is, it is not valid, for it is not safe: the land being described as submerged, it is feared the water will not recede from it, unless it is land whose clearing is beyond doubt. Others say: if it is feared the water will not recede from it, it is not permitted either without advance payment, as was said of the causes that prevent a man from alienating his property (al-Mudawwana 11/542 ; Mawaheb al-Jalil 7/421 ; Jami' al-Ummahat p. 435 ; al-Fawa'id al-Dawwani 2/129 ; Tahbir al-Mukhtasar 4/568).
The Shafi'is: lands are of several kinds:
Any land whose hire for cultivation is not valid may be rented to dwell in, to settle in, to gather wood in or to tether the animals. If one hires without specifying: "I rent you this white land, it has no water," it is valid, the negation of water indicating that the hire bears on something other than cultivation; if he then carries water and cultivates it, or cultivates it in hope of water, he is not prevented, but he has no right to build nor to plant in it. If he did not say "it has no water": if water may be hoped to be conveyed to it, the contract is not valid, the custom being hire for cultivation; if it is on a mountain top where water cannot be hoped to be conveyed, the contract is valid according to the most correct view, by indication of the context. And if one takes account of the negation of water, the parties' knowledge stands in place of explicit negation: two views, the more correct being prohibition, the custom for such lands being hire for cultivation, requiring a change of wording. Al-Nawawi (may Allah have mercy on him): know that the issue contains the explicit permission to hire without specifying the kind of benefit (al-Hawi al-Kabir 11/446 ; al-Muhadhdhab 1/160 ; Rawdat al-Talibin 4/11, 13 ; al-Najm al-Wahhaj 5/336-337 ; Mughni al-Muhtaj 3/384-385 ; Nihayat al-Muhtaj 5/313 ; al-Dibaj 2/460-461 ; Kanz al-Raghibin with Umayra's gloss 3/171 ; al-Mughni 5/332 ; al-Sharh al-Kabir 6/33 ; al-Kafi 2/301 ; Kashshaf al-Qina' 3/663 ; Sharh Muntaha al-Iradat 4/30 ; Matalib Uli al-Nuha 3/306).
The Hanbalis: the hire of a saline, unproductive land for cultivation is not valid, nor that of a land without water: the delivery of this benefit from this thing being impossible (al-Insaf 6/34 ; Kashshaf al-Qina' 3/664 ; Sharh Muntaha al-Iradat 4/30 ; Matalib Uli al-Nuha 3/616).