Islamic Fiqh > Companies and leases > Ijara (leasing) > Third issue: hiring undivided (musha') property
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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.
The jurists of the four schools agree on the validity of hiring musha' property to the co-owner: if the thing is undivided and one of the two co-owners wishes to rent the benefit of his share to his partner, it is permitted by agreement: there is no commingling in his right, the whole being in his hand, half by the status of ownership and the other half by the status of hire; no difference of cause is regarded at equal need.
They then differ over hiring musha' property to a non-partner: renting a share of his house, or of his share in a common house, to a third party. The majority of jurists, the two Hanafi companions (Abu Yusuf and Muhammad), the Malikis, the Shafi'is and the Hanbalis in one narration hold that the hire of musha' property is valid, whether it proceeds from the co-owner or from another: musha' property has a benefit (hence the like wage owed), and delivery is possible by abandonment or by arrangement; it is like renting from one's partner or from two men, and like sale: a known thing whose sale is permitted, so its hire too, like the divided property; a contract on his property possible with the partner, so with others, like sale; if the two partners do it together it is valid, so each alone over his share, like sale. It resembles the accidental commingling (the death of one of the two lessees) and the loan (ariya), which is closer: the loan is for benefit without compensation; if benefit were impossible, the loan would not be permitted; so if the loan is permitted, the hire is a fortiori, the effect of commingling being stronger in preventing donation than exchange: see that the gift of musha' is not permitted while its sale is. Any compensation the co-owner may barter on, a third party may barter on, like sale; any cause not preventing the contract on benefits from the partner's side does not prevent it from another's, like dearness, cheapness and partnership in one half; a hire contract on known property whose delivery to the lessee is possible, like the divided property; and any attribute not preventing sale does not prevent hire for everything whose sale is permitted, like the animal.
Abu Hanifa, Zufar and the Hanbalis according to the madhhab hold that the hire of musha' property is not valid, except to the co-owner, whether it is divisible property like land or indivisible like the slave or the animal: the purpose of hire is enjoyment, and the enjoyment of musha' is impossible, delivery inconceivable, unlike sale whose purpose is ownership, a conceivable ruling; enjoyment is sensory and impossible in undividedness, so it is void. See that the sale of a colt is permitted, not its hire; abandonment is regarded as delivery only where it is possible, and in musha' neither enjoyment nor possession are attainable; how then make it a delivery, without valid arrangement? This ruling is acquired for the ownership of the benefit and applies to the need of partition after ownership, the contract's ruling following it; yet the capacity for delivery is a condition of the contract's validity, and the condition precedes the thing; the contract is therefore void, unlike hire to the co-owner: no commingling in his right, the whole in his hand, one half by the status of ownership, the other by the status of hire. And because he hired what he cannot deliver, his hire is not valid, like the usurped thing: he cannot deliver his share without delivering his partner's, and he has no authority over his partner's property.
The device with the Hanafis for hiring musha' property: rent the whole then rescind the half, which is permitted, the accidental commingling not ruining the contract, as in the gift; or have the judge rule on its validity (Mukhtasar Ikhtilaf al-'Ulama 4/124-125 ; Bada'i al-Sana'i 4/180 ; al-Hidaya Sharh al-Bidaya 3/240 ; al-'Inaya 12/396-397 ; al-Jawhara al-Nira 3/362-363 ; Tabyin al-Haqa'iq 5/126-127 ; al-Bahr al-Ra'iq 8/23 ; Majma' al-Anhar 5/535 ; al-Lubab 1/490 ; Mukhtasar al-Waqaya 2/120 ; al-Furuq 3/105 ; al-Ishraf 3/204-205 no. 1050 ; Mawaheb al-Jalil 7/421-422 ; Bidayat al-Mujtahid 2/171 ; al-Hawi al-Kabir 7/445 ; Rawdat al-Talibin 4/15 ; Jawahir al-'Uqud 1/214 ; al-Mughni 5/322 ; al-Kafi 2/304 ; al-Furu' 4/336 ; al-Mabdu' 5/79 ; al-Insaf 6/33 ; Kashshaf al-Qina' 3/663 ; Sharh Muntaha al-Iradat 4/27 ; Matalib Uli al-Nuha 3/610 ; al-Ifsah 2/30).
The jurists differ over hiring a male animal for breeding, in two views, as detailed previously for sale.
First view, that of the majority of jurists, the Hanafis, Shafi'is and Hanbalis: hiring the male for breeding is not valid, it is void and unlawful, and no compensation is due for it; even if the lessee carries it out, he owes neither the designated rent nor the like wage nor any property, for it is an unknown gharar, not capable of delivery. Muslim reports from Abu al-Zubayr that he heard Jabir ibn Abdallah say:
The Messenger of Allah (peace and blessings of Allah be upon him) forbade the sale of the camel's stud service (dirab).Reported by Muslim (no. 1565)
And from Ibn Umar (may Allah be pleased with them both):
The Prophet (peace and blessings of Allah be upon him) forbade the fee of the male's service ('asb al-fahl).Reported by Al-Bukhari (no. 2284)
For delivery does not take place: it depends on the male's choice and desire; the purpose of the mounting is the deposit of his semen, which is not certain, and the resulting conception is not guaranteed. The 'asb is the fee taken for the male's breeding service; it is said: the male's 'asb is his semen with which he approaches the females and mates (Tahdhib al-Lugha 2/68). The fahl (male) linguistically designates the male of any animal (Lisan al-'Arab 11/516). The majority of jurists (except Ahmad in one narration), who forbid the breeding fee, say: if the female's owner gives the male's owner a gift or makes him an honorable present, he may accept it, for it is a lawful cause, like cupping. But if it is done as an exchange with an inward stipulation, it is not permitted for him to accept it. If someone needs it and finds no one to mount his animal for free, the animal's owner may pay the fee: it is an expenditure to obtain a lawful benefit in case of need, and paying a compensation is permitted to ward off need; but it is unlawful for the male's owner to take it, by the prior prohibition (al-'Inaya Sharh al-Hidaya 12/392 ; Mukhtasar Ikhtilaf al-'Ulama of al-Tahawi 4/102 ; al-Ifsah 1/395-396 ; al-Hawi al-Kabir 5/324-325 ; Sharh al-Sunna 8/138 ; al-Sharh al-Kabir of al-Rafi'i 4/101 ; Sharh Muslim 10/230 ; Rawdat al-Talibin 3/60 ; al-Mughni 4/148 ; al-Kafi 2/302 ; Majmu' al-Fatawa 30/320 ; al-Mabdu' 4/29 ; Kashshaf al-Qina' 3/662 ; Matalib Uli al-Nuha 3/606 ; Sharh al-Zarkashi 2/86 ; Zad al-Ma'ad 5/794 ; Nayl al-Awtar 6/23).
Second view, that of the Malikis and Ibn Aqil among the Hanbalis: hiring the male for breeding is permitted if done for a known number of mounts: it is a contract on the male's benefits, his mounting of the female, a sought benefit; the semen enters incidentally, its attainment predominating after the mounting; like the contract with a wet nurse for the milk to form in the child's belly, or like renting a land in which there is a well: the water enters incidentally, and in consequential things what is not excused in principal things is excused. The prohibition reported is taken as mere leniency (tanzih) and an exhortation to noble morals: it is not among noble morals to take a fee for that; if he does it, the hire is not rescinded, and if he takes it, the fee is not taken back from him (al-Dhakhira 5/413-414 ; al-Tabsira 10/4971 ; 'Aqd al-Jawahir al-Thamina fi madhhab 'alim al-Madina 2/672 ; Sharh Ibn Battal 6/412).
Ibn al-Qayyim (may Allah have mercy on him): as for Malik, permissibility is reported from him; his companions detailed it: the author of the Jawahir, in the chapter of contracts voided by the Lawgiver's prohibition, cites the sale of the male's 'usb, the prohibition being carried to hiring the male for the female's fertilization, a void contract as incapable of delivery; but hiring him for a known number of mounts is permitted: a term known in itself and capable of delivery.
The correct view, according to him: it is unlawful absolutely, the contract is void in every case, and it is unlawful for the other party to take the breeding fee, without it being unlawful for the one who gives it: he spent his property to obtain a lawful thing he needs, and nothing prevents it, like the cupper's earning or the butcher's wage. The Prophet (peace and blessings of Allah be upon him) forbade the customary practice of hiring the male for breeding and called it the sale of its 'usb; his words therefore cannot be carried to other than the actual, customary practice, which was the object of the prohibition. And it is known that the hirer has no valid purpose in the mounting itself of the male on the female for a known number of mounts: his purpose is the result and the fruit, for which he spent his money. The prohibition has been explained by several causes: the first is the impossibility of delivering the thing contracted, like hiring a runaway slave, the mounting depending on the male's choice and desire; the second is that the purpose is the semen, which cannot be contracted alone, being unknown in quantity and identity, unlike the wet nurse borne for man's benefit, to whom others are not assimilated.
It may be said, and Allah knows best, that this prohibition is among the beauties and the perfection of the Sharia: to put a price on the male's semen and make it the object of exchange contracts is a degrading, dishonorable thing in the eyes of the reasonable, and whoever does it is debased in their sight. Allah made the fitra of His servants, especially the Muslims, the scale of good and ugly: what the Muslims see as good is good with Allah, and what they see as ugly is ugly with Allah. This is clarified further: the male's semen has no value and is not an object of exchange; if a man's male mounts another's she-camel and begets, the offspring belongs to the she-camel's owner by agreement: only the semen separated from the male, and it has no value. This perfect Sharia forbade exchange for the mounting so that people give it to one another freely, for the multiplication of the needed offspring, without harming the male's owner or diminishing his property; giving this freely is among the beauties of the Sharia, as the Prophet (peace and blessings of Allah be upon him) said:
It is part of her right (the wife's) that her stallion be brought and her bucket be lent.Reported by Muslim (no. 988)
These are rights whose refusal harms people except through exchange, and the Sharia therefore made it obligatory to give them freely. If it is asked: when the female's owner gives a gift or an honorable present to the male's owner, may he accept it? The answer: if it is done as an exchange with an inward stipulation, it is not permitted for him; otherwise there is no harm, say the companions of Ahmad and al-Shafi'i; and even if the male's owner gives a gift or an honorable present without hire, it is permitted. Our companions cite a hadith reported from Anas, according to which the Prophet (peace and blessings of Allah be upon him) said: "If it is an honoring gift, there is no harm," mentioned by the author of the Mughni; but I know neither its status nor its transmitter, and Ahmad stated the contrary in Ibn al-Qasim's narration. He was asked: is it not like the cupper, who is paid although discouraged? He answered: we do not know that the Prophet (peace and blessings of Allah be upon him) gave anything for such a thing, unlike the cupper.
The jurists of the four schools, the Hanafis, Malikis, Shafi'is and Hanbalis according to the madhhab, hold that hiring trees for a known wage to take their fruit is not valid: it would lead to selling the fruit before the appearance of its ripeness, which is not permitted, and to selling goods before their existence. The fruit is a thing that cannot be acquired by a hire contract: its sale after its existence is permitted, and only what may not be sold after existence is acquired by hire. The object of hire is the benefit, an accident that does not stand by itself and whose persistence is not conceivable; the fruit, however, stands by itself like the tree: just as one cannot become owner of the tree by a hire contract, one cannot of the fruit. Moreover the lessor binds himself to what he cannot preserve: a calamity may strike the fruit, and man cannot guarantee it; likewise the animals' milk, their wool, their fat and their young: all things whose sale is permitted and which are not acquired by a hire contract (al-Ikhtiyar 3/100 ; al-Ashbah wa-l-Naza'ir p. 269 ; Ibn Abidin 6/292 ; al-Hindiyya 4/442 ; Kifayat al-Talib al-Rabbani 2/247 ; Mann al-Jalil 7/496 ; al-Hawi al-Kabir 7/391 ; al-Wasit 4/158 ; Rawdat al-Talibin 4/9-10 ; Mughni al-Muhtaj 3/364 ; al-Mughni 5/317-318 ; al-Sharh al-Kabir 6/32 ; al-Mabdu' 5/57, 77 ; al-Insaf 5/482 ; al-Furu' 4/314 ; Kashshaf al-Qina' 6/659 ; Sharh Muntaha al-Iradat 4/26 ; Matalib Uli al-Nuha 3/603).
Ibn Muflih and al-Mardawi: hiring land bearing trees is not permitted. Ahmad said: I fear he hired trees that do not bear fruit; and Abu Ubayd mentioned its prohibition by consensus (al-Mabdu' 5/57 ; al-Insaf 5/482 ; al-Mabsut 16/33 ; Bada'i al-Sana'i 4/175 ; al-Ikhtiyar 3/100 ; al-Ashbah wa-l-Naza'ir p. 269 ; Ibn Abidin 6/292 ; al-Hindiyya 4/442 ; Kifayat al-Talib al-Rabbani 2/247 ; Mann al-Jalil 7/496 ; al-Wasit 4/158 ; al-Bayan 7/292 ; Mughni al-Muhtaj 3/364 ; al-Furu' 4/314).
Shaykh al-Islam Ibn Taymiyya, Ibn al-Qayyim, and al-Subki among the Shafi'is hold that hiring trees for their fruit is valid. Proof: what Hammad ibn Salama reports, from Hisham ibn Urwa, from his father: "Usayd ibn Hudayr died leaving a debt of four thousand dirhams; his land was sold; Umar (may Allah be pleased with him) said: I will not leave my brothers' sons destitute; he returned the land and sold its fruits to the creditors for four years against four thousand, a thousand per year" (reported by Ibn Asakir in Tarikh Dimashq 9/94).
Ibn al-Qayyim (may Allah have mercy on him) cites this case as the twelfth example of the view forbidding the hire of trees: the purpose being the fruits, it equals their sale before the appearance of ripeness. A device was proposed: rent the land and water it for a determined share bearing on the tree. Shaykh al-Islam (may Allah have mercy on him): that is not needed; the correct view is the permissibility of hiring the tree, as Umar ibn al-Khattab did with Usayd ibn Hudayr's garden, which he rented for years and thereby paid the debt. Hiring land for its fruit equals hiring it for its crop: the lessee tends the tree by watering, maintenance and the care of the vine until the fruit is obtained, as he tends the land by plowing, watering and sowing until the crop: the fruit follows the course of the crop.
If it is objected: the difference is that the crop comes from the seed, the lessee's property, and the thing contracted is the deposit in the land, the watering and the tending, whereas the fruit comes from the tree, the lessor's property: the answer holds in several points. First, it affects neither the validity nor the invalidity of the contract: a difference without effect. Second, this argument falls for the hire of land for its spontaneous produce (kalaa') and its herbs that Allah makes grow without the lessee's seed: the exact counterpart of the tree's fruit. Third, the fruit is obtained only by the watering, the service and the tending of the tree: it is generated by the lessee's work and by the tree, and the lessee therefore has a share of effort in its attainment. Fourth, the generation of the crop comes not from the seed alone, but from the seed, the soil, the water and the air: the crop comes from the soil, the lessor's property, as the fruit from the tree; the seed in the land takes the place of the tree's watering: one deposited in the lessor's land a solid thing, the other in the tree a liquid thing; the fruit comes from that basis, from the water and the lessee's work, as the crop comes from this land, from the seed and the lessee's work: this is among the soundest parallels on the side of the land.
It is deduced that the Companions, the community's most perceptive and most knowledgeable of the effective meanings in rulings, saw no objection to raise against Umar: a consensus among them (Ighathat al-Lahfan 2/7-8 ; Majmu' al-Fatawa 29/61). He says also in the Zad: the idea that the hire contract bears only on a benefit is established neither by the Book, nor by the Sunna, nor by consensus; the Companions say the contrary: it is established of Umar (may Allah be pleased with him) that he accepted Usayd ibn Hudayr's garden for three years, took the rent and paid the debt; and the garden was a palm grove: this is the hire of the tree for its fruit, the madhhab of Umar ibn al-Khattab (may Allah be pleased with him), with no Companion known to contradict it; Abu al-Wafa Ibn Aqil, among Ahmad's companions, chose it, and it is our shaykh's choice (Zad al-Ma'ad 5/528).
He says further: there is no analogical difference between renting the land to one who tends it until it produces, and renting the tree to one who tends it until it yields: both are equal in analogy. The difference between hiring the tree to one who serves and tends it until it bears fruit, and selling the fruit before the appearance of its ripeness, holds in three points: the contract here bears on the sale of a thing, the hire on a benefit, even if the purpose is the thing, which does no harm (as the purpose of renting land for cultivation is the crop); the lessee takes the tree, serves and tends it as he takes the land, whereas in the sale it is the seller who tends the tree, and the buyer has neither its shade, nor the sight of it, nor the right to spread his clothes on it; finally the hire of the tree is a contract on an existing, known thing, for all forms of benefit, the fruit entering incidentally even if it is the purpose, as you say of the well's water or the wet nurse's milk that they enter incidentally even if they are the purpose; whereas the sale is a contract on a thing not yet created: these are two categories. The secret of the issue: the tree is like the land; its service and tending are like the plowing and service of the land; and the crop is like the fruit: if there is a sound analogy in the world, this is part of it (Ahkam Ahl al-Dhimma 2/262, 264).
Taqi al-Din al-Subki (may Allah have mercy on him): the hire ought to be permitted as the hire of land for cultivation: trees are rented for their fruits; I find no difference between the two, no indication of invalidity; and Abu Ubayd's words say explicitly neither the prohibition nor the permission of hiring trees; and Allah knows best (Fatawa al-Subki p. 429).
The jurists of the four schools, the Hanafis, Malikis, Shafi'is and Hanbalis, agree: hiring an animal to take its milk (camels, cows, sheep) is not permitted, such as saying: I rent your cow for the whole winter for such a price, to take its milk. Likewise if one says: I buy its milk for the whole winter for such a price, at my charge to feed it, and I return it to you at the end of the winter, as happens among us in Egypt. Taking the wool, the hair or the down follows the rule of milk, except for the wet nurse: permitted by consensus, as previously stated, the thing contracted in hire being the benefit, whereas the purpose here is the thing itself, which can neither be alienated nor acquired by hire, it being a deliberate taking of the thing.
The Hanafis: hire is the sale of benefit; hiring a sheep for its milk, its fat, its wool or its young is not permitted, these being things not acquired by a hire contract; likewise hiring a sheep to nurse a kid or a child. The Malikis: hiring a sheep for its milk, its wool or its produce is not permitted, a sale of a thing before its existence; but buying the sheep's milk is not forbidden absolutely: sometimes forbidden, sometimes permitted with ten conditions, in the bulk purchase, such as saying to a large owner of sheep: I buy from you the milk of one or two ewes of this flock, to be taken every day for a month:
It is likewise permitted if the purchase is by measure, such as saying: I buy from you every day two ritl of your animals' milk for a month for such a price, or I buy from you one hundred ritl of milk from which I take five ritl each day; with the preceding conditions, except the first (the small number of milking animals) and the knowledge of the milking place, the contract bearing on the measure, hence without gharar; then required are: the sale in full season, a term before which the milk does not decrease, the taking beginning on the contract day or a few days after, delivery to the animals' owner and not to another, and the price in advance, for it is a salam (al-Sharh al-Kabir with al-Dasuqi's gloss 5/363 ; Mawaheb al-Jalil 7/423-424 ; Mawaheb al-Jalil 4/486 ; Tahbir al-Mukhtasar 4/568-569 ; Jami' al-Ummahat 1/435 ; Sharh Mukhtasar Khalil 7/21).
The Shafi'is: hiring a sheep for its young, its wool or its milk is void, things not being alienated by a hire contract; in reality it is a sale of nonexistent and unknown things (al-Sharh al-Kabir of al-Rafi'i 6/91 ; Rawdat al-Talibin 4/10). The Hanbalis: hiring an animal (cattle, sheep) for its milk, or to nurse its young or others', or for its wool or hair, is not valid: the thing contracted is the benefit, the purpose here is the thing, which is neither alienated nor acquired by hire (al-Sharh al-Kabir 6/35 ; al-Mabdu' 5/77 ; al-Insaf 6/31 ; Kashshaf al-Qina' 3/661 ; Sharh Muntaha al-Iradat 4/26 ; Matalib Uli al-Nuha 3/608).
Shaykh al-Islam Ibn Taymiyya, supported by Ibn al-Qayyim, holds that hiring the animal for its milk is permitted if the lessee tends and feeds it, like the hire of the tree; if the owner feeds it and the buyer takes the milk, it is a sale, without gharar: like the maniha (the loan of a milking animal), which is a loan for the enjoyment of the milk, as one lends the mount for riding; it occurs little by little, resembling benefits all the more. The thing contracted in the hire of land for cultivation is a thing (the grain produced by watering and work); likewise the purpose of one who rents the sheep is what Allah produces of its milk through feeding and tending: no difference, and the calamities that strike the crop are more numerous than those of milk; and the principle in contracts is permissibility and validity.
Shaykh al-Islam (may Allah have mercy on him): the thesis that hire bears only on benefits and not on things is neither the word of Allah, nor of His Messenger, nor of the Companions (may Allah be pleased with them), nor of the imams (may Allah have mercy on them): it is the word of a group of people. It will be said to them: we do not concede that hire bears only on benefits; hire bears on what renews, occurs and is replaced while the thing remains, like the waters of the well, whether thing or benefit; likewise the waqf may bear on what renews little by little, whether benefit or thing: dates, milk, springing water. Likewise the loan: its benefit bears on what occurs and is replaced; it is said: he lent the mount (afqara al-zahr), lent the palm (a'ra al-nakhla) and lent the she-camel (manaha al-naqa): he drinks her milk then returns her, or lends the palm to eat its fruits then returns it, as lending a mount to ride then returning it. Likewise hiring a woman, a bird, a she-camel, a cow or a sheep to drink her milk for a known period: like hiring a mount to ride for a known period.
If custom changes, this change gives the lessee the choice between rescission and the indemnity (arsh); likewise if one rents a garden to use it for a year or two, as Umar ibn al-Khattab did in accepting Usayd ibn Hudayr's garden for three years, taking the sum and paying the debt. If the lessee is the one who tends these animals, it is a hire, more worthy of validity than the wet nurse's hire; if the owner feeds, waters and shelters them, and the hirer knows only her milk, the animal being hired to nurse young of his, it is like the wet nurse's hire; if he is the one who takes the milk, it resembles the wet nurse's hire without a designated child: it may be called sale or hire, a verbal dispute. If it is said: it is the sale of a nonexistent thing, the answer: yes, but nothing in the principles of the Sharia forbids the sale of every nonexistent thing: the nonexistent thing that needs selling and is known by custom may be sold, like the fruit after the appearance of its ripeness, valid according to the majority of scholars, as the Sunna indicates although the parts to be created are nonexistent yet entered the contract; likewise the sale of the muqathi and the like on this view; and Allah knows best (Majmu' al-Fatawa 30/199, 201 ; al-Mabdu' 5/77 ; Kashshaf al-Qina' 3/661 ; Sharh Muntaha al-Iradat 4/26 ; Matalib Uli al-Nuha 3/608).
Ibn al-Qayyim (may Allah have mercy on him): as for hiring a sheep, cow or she-camel for a known period to take her milk, the majority does not permit it, but our shaykh chose the permissibility, reported also as the view of some scholars, and he devoted a unique treatise to it. He said: renting sheep, cows or she-camels during the milking days for a designated wage, with feeding at the owner's charge, or for a designated wage with feeding at the lessee's charge, taking the milk, is permitted according to the most correct of the scholars' two views, as with the wet nurse. It resembles sale and hire, which is why some jurists mention it under sale and others under hire; if the milk is obtained through the lessee's feeding and his tending of the flock, it resembles the hire of the tree; if the owner feeds it and the buyer takes a measured milk, it is a pure sale; if he takes the milk unrestrictedly, it is also a sale, the milk's owner delivering him the milk, unlike the wet nurse who nurses the child. It does not fall under the forbidden gharar sale: gharar is hesitation between existence and nonexistence, forbidden like gambling (maysir), which Allah prohibited as consuming wealth unjustly, a form of injustice that Allah forbade; and it is gambling only if one of the exchangers obtains property and the other may or may not obtain, like the sale of the runaway slave, the stray camel or the habal al-habala (the unborn young of an unborn young): the seller takes the money and the buyer may obtain something or not, in unknown quantity; but what is known by custom, like the benefits of things by hire (land, mount), the customary milk of the wet nurse or of the animals, the customary fruits and crop, all of that belongs to one category and is permitted. If attainment follows the customary way, otherwise what is missing of the sought benefit is deducted from the lessee, like the price reduction for defect in sale, or like the perishing of part of the sold thing before possession in other sales.
If it is objected: the object of the hire contract is only the benefit, not things (hence the prohibition of hiring food to eat it or water to drink it), whereas the wet nurse is hired on a benefit (placing the child in her lap, applying him to her breast), the milk entering in an included or consequent manner, like the well's flow in the hire of a house, and in the included and the consequent what is not excused in the principles is excused: the answer holds in several points. The first: to deny that hire bears only on a benefit, for it is established neither by the Book, nor by the Sunna, nor by consensus; the Companions say the contrary: Umar (may Allah be pleased with him) accepted Usayd ibn Hudayr's garden for three years, took the rent and paid the debt; the garden was a palm grove: the hire of the tree for its fruit, Umar's madhhab with no known objector among the Companions, chosen by Ibn Aqil and selected by our shaykh; your thesis is therefore neither conceded nor established by proof, and the utmost you can allege is the analogy with hiring bread to eat and water to drink: the most corrupt of analogies, for the bread vanishes without being replaced, unlike the milk and the well's flow, which renew little by little and resemble benefits.
The second point: the fruit follows the rule of benefits in the waqf and the loan: one may endow a tree in waqf so that the beneficiaries profit from its fruits, as the waqf of land for its crop; the loan of the tree is permitted, like the loan of the mount, of the dwelling or of the milk's maniha; all of that is donation of the growth and benefit of wealth: he who gives his property to dwell in is like he who lends his mount to ride, his tree to exploit, his land to cultivate, his sheep to one who will drink her milk: these benefits enter the contracts of donation, whether the origin is endowed or not, and also the contracts of partnership: giving a sheep, a cow or a she-camel to one who makes it productive against a share of her milk and offspring is valid according to the most correct of Ahmad's two narrations; they therefore likewise enter the contracts of hire.
Third point: things are of two types: those not replaced little by little (if they vanish, they vanish wholly) and those replaced little by little (each vanished part is replaced by a similar one): an intermediate rank between benefits and things that are not replaced; one must therefore examine to which of the two types it is more similar in order to attach it, and its resemblance to benefits being stronger, attaching it to them is more correct.
Fourth point: Allah established in text in His Book the hire of the wet nurse, naming wage what is given her; there is in the Quran no hire stated in text in our Sharia except that of the wet nurse, by the word of the Most High:
"If they nurse for you, give them their wages, and settle between you with kindness."
Surah At-Talaq, 6
Our shaykh (may Allah have mercy on him): he who conjectured it to be contrary to analogy imagined that hire bears only on a benefit; it is not so: hire bears on everything enjoyed while its origin remains, whether thing or benefit; likewise this thing is the object of waqf and loan: what the waqf's beneficiary and the borrower enjoy without compensation, the lessee enjoys with compensation; the wet nurse's milk being enjoyed with the origin remaining, its hire is permitted as for the benefit: it is analogy itself, these things being produced by Allah little by little with the origin remaining, like benefits.
Fifth point: the principle in contracts is the obligation of fulfillment, except what Allah and His Messenger forbade: Muslims are bound by their conditions, except a condition making the unlawful lawful or the lawful unlawful; what is unlawful in conditions and contracts is so only by Allah's and His Messenger's prohibition; yet those who forbid have no text of prohibition at all, but an analogy whose difference between origin and branch is known to prevent attachment, whereas the analogy of the one who permits is closer to the branch's equality with its origin: on this there is no escape, and success comes from Allah.
Sixth point: those who forbid this hire, seeing the wet nurse's hire established by text and consensus while the contract's purpose is the milk, a thing, contrived to validate it by a device that they, the wet nurse and the lessee know to be invalid: they say the contract bears only on placing the child in her lap and applying him to her breast, the milk entering consequentially. But Allah knows, and the reasonable are unanimous, that it is not so: placing the child in her lap is the purpose neither by custom, nor in reality, nor by the Sharia, and no hire contract bears on it; if she nursed the child in another's lap or in its cradle, she would earn the wage; and if the purpose were the bare breast, every woman having a breast would be hired, even without milk: this is the truly corrupt analogy and the cold fiqh. How then can it be said that the wet nurse's hire is contrary to analogy, and claimed that this is the sound analogy?
Seventh point: the Prophet (peace and blessings of Allah be upon him) encouraged the lending of the she-goat and the sheep for their milk, urged it and mentioned the reward; yet it is neither sale nor gift, the gift of a nonexistent, unknown thing being invalid: it is the loan of the sheep for the enjoyment of her milk, as one lends the mount for riding: permission to enjoy her milk; both are one and the same in the Sharia, and what may be enjoyed by loan may be enjoyed by hire: the same object, the difference being only donation or exchange.
Eighth point: what Harb al-Kirmani reports in his masail: Sa'id ibn Mansur informed us, Abbas ibn Abbas from Hisham ibn Urwa, from his father: Usayd ibn Hudayr died leaving a debt of six thousand dirhams; Umar ibn al-Khattab summoned his creditors and rented them his land for two years, land planted with trees and palms, made up of the gardens of Medina in which palms predominate, the white land being scarce there. This is the hire of the tree for its fruit; whoever claims it contradicts consensus lacks knowledge, and claiming consensus on its permissibility is closer: Umar (may Allah be pleased with him) did it in Medina before the Emigrants and the Helpers, a scene among the most famous, with no one raising denial, the Companions accepting it with submission, whereas they objected to lesser things, as they objected to Umar's mut'a of pilgrimage (Imran ibn Husayn and others); no one denied this event. We shall explain, Allah willing, that it is pure analogy, that those who forbid it need it themselves, and that they resort to it through unlawful devices.
Ninth point: the thing contracted in the hire of land for cultivation is a thing: the crop the lessee produces, and he has no other purpose than the land's benefit. If it is said: the thing contracted is the benefit of plowing, sowing and cultivation, the thing being generated by this benefit, as if one hired for digging a well from which water comes: the thing contracted would be the work itself, not the water; the answer: the land's lessee has no purpose but the crop, the work being only a sought means for something else, with no benefit in itself, being only toil and hardship; and his purpose is what follows from it (the passage continues in the following part).