Islamic Fiqh > Companies and leases > Ijara (leasing) > First modality of paying the wage: requiring it in advance in the session
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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.
Fifth condition: the acquisition of the wage by the mere contract and the obligation to deliver it. The wage in the ijara knows only three situations: the parties require its immediate payment in the session, they require its deferral, or they contract absolutely without condition of deferral or of advance.
The first situation: the stipulation of immediate payment in the session. The jurists agree on the validity of the stipulation of paying the wage in the session, for the ownership of the two compensations is established in one and the same time so as to realize the meaning of the pure exchange and the equality sought by the two contracting parties; the exchange and the equality are realized only through the establishment of the ownership of both in one and the same time. When the advance is stipulated, it is not the absolute exchange that is realized, but the exchange restricted by the condition of advance, which must therefore be taken into account, according to the word of the Prophet (may the peace and blessings of Allah be upon him): "The Muslims are bound by their conditions". Ownership is thereby established over the compensation before the compensated thing, as is the validity of the advance in the price of the sale even though the absolute of the contract implies deferral (Bada'i' as-sana'i', 4/201-202; al-Hawi al-kabir, 7/395).
The second situation: the stipulation of deferral. The jurists agree on the validity of deferring the wage in the ijara of an object, whether it be a building, a mount or a person, as in: "I rent you this house, or such caravan known to the two contracting parties", or the engagement of a determined person for a work, or the sewing of a garment: it is valid, deferred to its term, even if the condition is fixed day by day, month by month, or less or more: it is as they agreed, for the ijara of an object is like its sale, and its sale is valid with an immediate or deferred price, so it is with its renting. Al-Mawardi said: if they stipulate its deferral or its dating, the wage is deferred or dated, by consensus (al-Hawi al-kabir, 7/395; Rawdat at-talibin, 4/6; Bada'i' as-sana'i', 4/202; al-Mughni, 5/257; al-Insaf, 6/81; Durrar al-hukkam, 1/458).
The sound position among the Shafi'is, and a view among the Hanbalis: the ijara bearing upon a benefit attached to the obligation, such as renting a mount or a described caravan for a determined place, or renting a described caravan for a determined term, or binding the lessor to a work in the obligation, such as a construction or a sewing, requires for its validity the payment of the wage in the session absolutely, if it is concluded by the words of the salam, like the capital of the salam, for it is a salam upon the benefits: "I bind your obligation to a sewing or a construction for these dirhams", "I hand over to you these dirhams for the sewing of such a thing", "for an animal thus described". The mention of the transport or of the construction is required in these two forms, so that the contract detaches itself from the salam over objects towards the salam over benefits, which is permitted. It is the same if the contract is concluded by the words of the ijara according to the sound position of the school, such as: "I rent from you a mount thus described to carry me to such a place": in view of the meaning, deferring the wage in it, substituting for it, making a hawala upon it or concerning it, or releasing oneself from it, is not permitted (Rawdat at-talibin, 4/6-7; Mughni al-muhtaj, 3/382; an-Najm al-wahhaj, 5/321-322; ad-Dibaj, 2/456-457; Hashiyat Qalyubi and Umayra, 3/165-166; Jawahir al-uqud, 1/234).
Ibn Qudama (may Allah have mercy on him) said: if they stipulate its deferral, it is permitted, unless the contract bears upon a benefit in the obligation: two views then exist. The first: it is permitted, for it is a compensation in the ijara, whose deferral is permitted as if it bore upon an object. The second: it is not permitted, for it is a contract upon what is in the obligation, whose compensation cannot be deferred, like the salam (al-Kafi, 2/311; al-Insaf, 6/81).
The jurists differed: when the ijara contract is absolute, without condition of advance or deferral, does the wage become due immediately and does the lessor acquire its ownership by the mere contract, or does he acquire it and hold the right to it only day by day, progressively, or is he entitled to it only after the passing of the whole term? The Shafi'is and the Hanbalis hold that the wage becomes due by the mere contract if the contract is absolute and the lessee has not stipulated a term, as the seller acquires the price by the sale. What becomes obligatory in the contracts over benefits makes its compensation immediately claimable, as in marriage; and every compensation made immediate by condition, its absolute implies claimability, like the price. The principles have been laid down such that the delivery of the compensated thing entails the delivery of the compensation, so as to equalize the two contracting parties in what they acquire of compensation and compensated thing: the share of the one must not prevail over that of the other. As in the sale, where the delivery of the merchandise obliges to the delivery of the price, and in marriage, where the granting of enjoyment obliges to the delivery of the dower; so it is in the ijara: the delivery of the benefit obliges to the delivery of the wage. The benefits are here deemed received in possession by ruling, although effective possession is not established in them, for four reasons.
Al-Mawardi (may Allah have mercy on him) said: the first is what ash-Shafi'i mentioned: if the benefit were deferred and not received through the granting, the deferral of the wage would not be permitted, for it would become a debt against a debt, which is prohibited; yet their consensus on the permissibility of deferral is the proof that possession takes place in it. The second: if the benefit were not received, renting it out again would not be permitted to the renter of the house, the sale of what has not been received being void; yet their consensus on the permissibility of renting it out again is the proof of it. The third: the wife is bound to grant herself only after taking possession of her dower; if her dower is the residence of a house which she has taken, delivering herself is binding: without taking possession of the dower, she would not be bound to it. The fourth: if the wage were not acquired by the delivery of the house and the granting of residence, the mudaraba upon it would not be permitted, nor taking silver against gold and gold against silver, which is not permitted either for deferred debts; its permissibility is the proof of the obligation. Once it is established by these proofs that the benefits have the status of the received thing, the delivery of what faces them, the wage, is binding.
If it is objected: why have you deemed the benefits received by ruling, without effective possession, and the wage received by effective possession? It is answered: the wage cannot be deemed received by ruling, hence effective possession takes place in it; and for the benefits, effective possession is not possible, hence it takes place by ruling, the two thus being equalized. Saying that the benefits are deemed received means that one may dispose of the house, although the ownership of the benefit may cease through demolition; likewise, the lessor may dispose of the wage, although its ownership may cease through demolition (al-Hawi al-kabir, 7/396-397; Rawdat at-talibin, 4/6-7; Mughni al-muhtaj, 3/382; an-Najm al-wahhaj, 5/321-322; ad-Dibaj, 2/456-457; Hashiyat Qalyubi and Umayra, 3/165-166; al-Mughni, 5/256-257).
The Hanbalis said: if the contract is absolute, the wage becomes due by it immediately, and its delivery accompanies the delivery of the object, for it is a compensation in an exchange, acquired by the absolute of the contract like the price. If the ijara bears upon a work in the obligation, the enjoyment of the wage is acquired at the completion of the work, its delivery not being obligatory although it becomes due by the contract; it is on this basis that the texts came, such as the word of the Prophet (may the peace and blessings of Allah be upon him):
Give the hiree his wage before his sweat dries.Hasan hadith, narrated by Ibn Majah (2443) and al-Quda'i (1/433)
The hiree is paid only once his work is completed, for it is a compensation delivered only with the compensated thing, like the dower and the price. It differs from the ijara over objects, whose delivery follows the regime of the delivery of the benefit; as soon as the ijara bears upon a work in the obligation, the delivery of the benefit does not take place nor what stands in its place, and the acquisition of the delivery of the wage depends on the delivery of the work. If he performs a part of it, he has the right to the wage of the like for what he did; it is said: if he is excused for abandoning the work, otherwise two views are admitted. Ibn Abi Musa said: whoever is hired for a known work deserves the wage at the delivery of the work; if he is hired for each day for a known wage, he has the right to the wage of each day upon its completion (al-Mughni, 5/256-257; al-Kafi, 2/311; al-Mubdi', 5/116; al-Insaf, 6/81).
The Hanafis and the Malikis (the Maliki detail is to come) hold that the wage does not become due by the contract itself nor by the delivery of the rented object, but that it is acquired first by the first installment, progressively. The Prophet (may the peace and blessings of Allah be upon him) said:
Three men will be my opponents on the Day of Resurrection: a man who gave in my name and then betrayed; a man who sold a free man and spent his price; and a man who hired a worker, obtained the work from him, and did not give him his wage.Narrated by al-Bukhari (2227)
This proves that the wage is not acquired by the mere contract, for the Prophet attached the threat to the one who withholds the wage after the work: had the wage become deliverable by the mere contract, he would not have made the obtaining of the work a condition for the mention of the threat against withholding the wage. And His word: "Give the hiree his wage before his sweat dries" is an exhortation to hasten it at the time it becomes due, and a prohibition of delaying it: had it been due by the mere contract, it would be an order to delay it, contradicting the purpose of the report. He indeed made the first moment of haste the one following the completion of the work, before the drying of the sweat, which proves that such is the first moment of the obligation. And because the wage is a compensation in a contract of pure exchange, its delivery is not required by the mere contract without the delivery of the object of the contract, like the prices in the sales.
The Hanafis said: the wage does not become property by the mere contract nor deliverable by it, whether it be an object or a debt. If the contract is absolute, the ruling is established upon the two compensations in one and the same time: the ownership of the lessor over the wage is established at the moment when that of the lessee is established over the benefit, and progresses gradually according to the arising of its locus, which is the benefit, the latter coming about gradually. For in the absolute exchange, if ownership is not established upon one of the compensations, it is not established upon the other, otherwise it would not be a true exchange, for want of a compensation facing it; and equality is the purpose of the contracting parties in the absolute contracts, whereas there is no equality without ownership established upon one of the compensations. Ownership has not been established upon one of them, the benefits of the term, for they are non-existent in reality: the wage is therefore not established immediately, so as to realize the absolute exchange.
The wage only becomes property through one of three means: the effective advance, the condition of advance, or the obtaining of what faces it.
Abu Hanifa at first held that the wage becomes due only after the passing of the term, as in renting land for a year or ten years: this is the view of Zufrar; then he retracted and said that it is due day by day. In the ijara over the distance, as in renting a camel for Mecca going and returning, his first view was that the wage is deliverable only after the return: this is the view of Zufrar; then he retracted and said that it is delivered immediately, each immediate for an immediate. Al-Karkhi mentioned that he delivers the wage of each stage upon reaching it: this is the view of Abu Yusuf and Muhammad.
The meaning of the first view of Abu Hanifa is that the benefits of the term or of the distance constitute a single object: so long as one has not obtained all of them, nothing of their compensation is due, as in the one who hires a tailor to sew a garment and who has sewn a part of it: he has the right to the wage only once the work is completed; the same applies to the fuller and the dyer. The meaning of the second view, which is the famous one, is that the ownership of the compensation is the benefit, which comes about gradually according to the passing of time: one acquires its ownership progressively, and likewise what faces it. The delivery of the wage ought therefore to be binding hour by hour, but this being impossible, he preferred to say day for day, stage for stage, no excuse being admissible there. It is reported from Abu Yusuf, concerning the one who rents a camel for Mecca, that when he reaches a third or a half of the road, he is given a share of the wage in proportion, by juristic preference (istihsan); al-Karkhi mentioned that this is the later view of Abu Yusuf, whose meaning is that the journey to a third or a half of the road is a benefit sought in itself: as soon as that measure is attained, the delivery of its compensation becomes binding.
All this holds if the contract is absolute; if the advance of the wage is stipulated, it becomes property by the condition, and its immediate payment becomes obligatory by consensus, as previously stated. The outcome is therefore that the wage only becomes property through one of three means:
As for the Malikis, they distinguish in the advance of the wage and its deferral. They said: the principle in the wage of the ijara is deferral, for the contract over benefits is like the contract over objects: just as the price does not become due by the mere contract over objects except after the delivery of the merchandise, the ijara must be the same. The immediate payment of the wage becomes obligatory in the following cases:
This holds so long as one has not begun upon the guaranteed benefits: if one sets out on the journey, deferral becomes permitted, the debt against a debt then vanishing, on the basis that taking possession of the first installments amounts to that of the last, for by setting out on the journey it is as if he had obtained the whole benefit, and the consuming of the first days of travel amounts to that of the whole, it being the greater part that can be consumed. It is not meant that he has not begun now, but that he has not begun after more than three days: the deferral of a day or two, or three, does no harm, for it is a salam, to the point that even if it perishes, the regime of the salam applies. It suffices to advance a small part of the wage, like one or two dinars, because of the length of the journey, as in the hire for the pilgrimage, whether during or before: this is out of necessity, for if the advance of the whole wage were obligatory in the long journey, like the pilgrimage and the like, people's property would be lost through the flight of the camel drivers with the wage. The sufficiency of advancing a small part takes place if the wage is large; otherwise it must be advanced in full. The word belongs to the lessor if he demands the advance on the guaranteed thing, and to the renter if he demands beginning without advance.
When the wage is not determined, when its advance is neither stipulated nor established by custom nor by habit, and when the benefits are not guaranteed, no part of the wage must be paid in advance, except through the progressive obtaining of what faces it of the benefit: each day of benefit obtained makes its wage due. The day here designates the determined portion of time, not the reality of the day, in case of mutual aversion (mushahana); if the two parties agree upon something workable, the advance of the whole as well as its deferral are permitted: if the advance is stipulated or established by custom, it takes place, as previously stated.
This holds outside the craftsman and the hiree: it concerns the renting of buildings, mounts or humans for service; as for the craftsman and the hiree, they have no wage except after completion. It is said in al-Mudawwana: if the craftsmen and the hirees want to hasten the wage before completion and the owner refuses, they are bound to what is customary among people: if they have no custom, nothing is decided in their favor except after completion; as for the renting of a house, a mount, or the renting in the sale of merchandise and the like, it is in proportion to what has elapsed. The tailor who has sewn half of the shirt has no right to half of his wage if he did not take it on that basis, but only once the work is completed. End of quotation.
The difference between the hiree and the craftsman is that the seller of the benefit of his hand, if he does not own what his work is done upon, like the mason and the carpenter, is a hiree; if he owns it, without adding anything of his own to it, like the tailor, the blacksmith and the goldsmith, he is a craftsman; if he adds something of his own to it, like the dyer, he is a selling craftsman.
Al-Qadi Abd al-Wahhab (may Allah have mercy on him) said: the wage is acquired neither by the mere contract nor by the delivery of the rented object; it is acquired first by the first installment, for each share of the property facing each share of the benefits, unless there exists a habit or a condition by which the delivery is acquired, or the deferral leads to a prohibited matter, in which case the advance is required; not by the mere contract. For the wage is the price of the benefits, as the price in the sale is the price of the body sold; it is established that in the sale the delivery of the price is not required by the mere contract, but after the delivery of the object of the contract: so it must be in the ijara. The word of the Prophet (may the peace and blessings of Allah be upon him): "Give the hiree his wage before his sweat dries", is an exhortation to hasten it at the moment of its acquisition and a prohibition of deferring it: had it been due by the mere contract, it would be an order to delay it, contradicting the purpose of the report. And because it is a compensation in a contract of pure exchange, its delivery is not required by the mere contract without the delivery of the object of the contract, like the prices in the sales (al-Ma'una, 2/102; al-Ishraf, 3/198, no. 1042, with adaptation; Tahdhib al-masalik, 4/316; at-Tawdih, 7/141; ash-Sharh al-kabir with the Hashiyat ad-Dasuqi, 5/335 and 5/338; Mawahib al-jalil, 7/383 and 7/385; at-Taj wal-Iklil, 4/459 and 4/461; Sharh Mukhtasar Khalil, 7/3-4; Tahrir al-Mukhtasar, 4/550-551; Hashiyat as-Sawi with ash-Sharh as-saghir, 8/475-477; Manh al-jalil, 8/436 and 8/440).
Sixth condition: that the wage not be a part of the object of the contract. The jurists differed: must the wage not be a part of the object of the contract, or is it valid even as a part of it? The majority of jurists, the Hanafis according to the school, the Malikis according to the famous view, the Shafi'is, and the Hanbalis in a narration, hold that the wage must not be a part of the object of the contract. Renting a skinner to skin the sheep against the skin upon it is therefore not valid, nor renting a miller to grind the wheat against a part of its flour, such as a quarter, or against its bran, because of the ignorance of the thickness of the skin and of the quantity of flour and bran, and the incapacity for an immediate wage. Likewise giving sesame to a man to press it against a rotl of its oil: it is corrupt; likewise giving spun thread to a weaver to weave it for half: it is corrupt, for it is the meaning of the miller's qafiz; likewise the transport of food in a ship, or renting a mount to carry food against a qafiz of it: it is corrupt, for he made the wage a part of what comes out of his work. They adduced as proof what is reported from the Prophet (may the peace and blessings of Allah be upon him):
He prohibited the hire of the stallion for stud and the miller's qafiz.Narrated by at-Tahawi in Sharh Mushkil al-Athar (2/187) and ad-Daraqutni (3028)
The form of the miller's qafiz is to rent to another an ox to grind the wheat on condition that its owner have a qafiz of its flour, or to hire a man to grind one's wheat against half, a third or a quarter of its flour, and the like: it is corrupt, for it is prohibited. The meaning is that he made the wage a non-existent thing: the wage is a part of the flour issuing from his knowledge, non-existent here below in reality, without the status of existence, for it does not fall due in the obligation; only what has an existence in the world falls due in the obligation, and the compensation in transactions must exist in reality, like the object, or by ruling, like the price. The rule is therefore: it is invalid to make the wage a thing that results from the work of the hiree.
The Hanafis said: renting a man to grind a qafiz of wheat against a quarter of its flour, or to press a qafiz of sesame against a known share of its oil, is not permitted, for the hiree profits from his work of grinding and pressing and thus works for himself; it is reported from the Messenger of Allah (may the peace and blessings of Allah be upon him) that he prohibited the miller's qafiz. Giving thread to a weaver to weave it for half: the ijara is corrupt, for the weaver profits from his work, which is the weaving: it is the meaning of the miller's qafiz, and the renting of it is prohibited.
The meaning is that the renter is incapable of delivering the wage, the latter being a part of what comes out of the work of the hiree, and the capacity of delivery being a condition of the validity of the contract: he is capable of it neither by himself nor through another, so he is not deemed capable, and the contract is corrupt. And because he made the wage a thing whose delivery is possible only through the work of the hiree, a work incumbent upon him by the ruling of the contract: the capacity, which is the condition of the contract, then depends on the ruling of the contract and becomes like its ruling; yet the condition cannot be a ruling, and therefore cannot stand by it. If he weaves or carries, he has the right to the wage of the like, without exceeding the named wage.
The masters of Balkh, such as Muhammad ibn Salama, Nasr ibn Yahya and an-Nasafi, permitted the transport of food against a part of what is carried, and the weaving of the garment against a part of what is woven, because of the practice of the people of their land. They said: the one who did not permit it did so only by analogy with the miller's qafiz, and analogy is abandoned before custom; if it is said that the text reaches it by indication, the text is specified by practice: one sees that manufacturing to order (istisna') abandoned analogy and was specified by practice against the general rules (al-Muhit al-Burhani, 8/70 and 8/75; al-Mabsut, 16/35; Bada'i' as-sana'i', 4/192; al-Ikhtiyar, 3/72; Tabyin al-haqa'iq, 5/129-130; al-Inaya, 12/409-412; al-Bahr ar-ra'iq, 8/36-37; ad-Durr al-mukhtar, 6/57).
The Malikis said: it is not permitted for a person to hire a person to skin a sheep against its skin: it is a corrupt ijara, with no difference between the sheep being slaughtered or alive, for the skin is acquired only after the completion of the skinning, which may be interrupted before completion or delivered; like the skin is the flesh, indeed more so. The ijara is likewise corrupt if one hires for grinding the wheat against its bran, because of the ignorance of its quantity and quality: it resembles the invisible bulk; if one hires against a known measure of bran, saying to the miller: "grind it and you have a sa' of bran", it is permitted, as if one hired against a known flayed skin to skin a sheep. It is the same if one hires for weaving a garment saying: "weave it and half belongs to you upon completion": it is a corrupt ijara.
Malik said in al-Mudawwana: if one hires for tanning skins or working them, or weaving a garment, against half upon completion, it is not permitted. Ibn al-Qasim said: because he does not know how it will come out; and Malik said: whatever you are permitted to sell, you are permitted to hire against; and what you are not permitted to sell, you are not permitted to hire against.
The ijara is likewise corrupt if he says: "winnow my olives, what falls is half or a quarter for you", and the like: the cause of the corruption is the uncertainty, through the ignorance of the quantity of what falls, ignorance in quantity. If he says: "winnow all my olives, half is for you", it is permitted; the ijara is likewise permitted if he says: "pick my olives, what you pick is half or a quarter for you": it is permitted.
The ijara is permitted if he says: "harvest my crop, what you harvest is half for you"; but if he says: "harvest my crop and thresh it, half is for you", it is not permitted, for he hired him against half of what comes out of the grain, without knowing how much or how it will come out. If one were to sell a crop in bulk that may dry up, on condition of carrying out its harvest and threshing, it would not be permitted, for he would have bought grain in bulk without having seen its totality. Likewise, renting by saying: "press my olives, what you press is half for you" is not permitted, the cause of the corruption being the ignorance of the quality of the output: ignorance in quality and in quantity at once.
If the hiree completes his work, the wage of the like is due to him, but not what had been agreed: the garment and the skins belong to their owner so long as they have not left the hand of the craftsman. If they leave his hand after the tanning or the weaving, through sale, loss or transfer to the market, the owner of the skin or of the thread owes the craftsman the wage of the like for the tanning of the whole skin and the weaving of the whole thread, and the craftsman is bound towards the owner of the garment or of the skin for the value of the half that had been assigned to him, a corrupt sale having been realized in it and having passed away: he guarantees its value once tanned, the other half being the property of its master. All this holds if the half was assigned to him after the work.
If the half is assigned to him in the thread or in the skin from the time of the contract, on condition that he tan or weave it together, it is not permitted either, for he was prevented from taking what had been assigned to him before the tanning or the weaving. If it passes away at the beginning of the tanning or the weaving, the craftsman guarantees the value of the half on the day of its taking, the sale being corrupt and having passed away, the other half belonging to its master, together with the wage of his work. If the half is assigned to him from the time of the contract, free to do with it what he wills without any impediment of tanning or weaving, it is permitted: the divisions are therefore three. If he says: "half of the thread belongs to you on condition that you weave half of it for me", it is permitted (al-Mudawwana al-kubra, 11/409; ash-Sharh al-kabir, 5/339 and 5/341; Mawahib al-jalil, 7/389 and 7/393; at-Taj wal-Iklil, 4/462 and 4/466; Sharh Mukhtasar Khalil, 7/5-6; Tahrir al-Mukhtasar, 4/552-553; Hashiyat as-Sawi with ash-Sharh as-saghir, 8/486-488).
The Shafi'is said: renting a mount for a month against a thing resembling the fodder, such as its fattening, is not valid, because of ignorance; renting a skinner to skin the sheep against its skin, or a miller to grind the wheat against a part of its flour, such as a quarter, or against its bran, is not valid, because of the ignorance of the thickness of the skin and of the quantity of flour and bran, and the incapacity for an immediate wage. The rule is: it is invalid to make the wage a thing that results from the work of the hiree (al-Muhadhdhab, 1/399; Rawdat at-talibin, 4/6-7; Mughni al-muhtaj, 3/383; an-Najm al-wahhaj, 5/324; ad-Dibaj, 2/458; Hashiyat Qalyubi and Umayra, 3/167).
The Hanbalis said: renting a mount against its fodder alone, or together with a known sum of dirhams, is not valid, for the fodder is unknown and has no custom to be referred to; if he describes it among the determined things, like barley, quantifying it in a known way, it is permitted. Renting a man to flay a beast against its skin is not valid, for one does not know whether the skin will come out sound, thick or thin, and because it cannot be a price in the sale, therefore not a compensation in the ijara, like the unknown things; if he skins it on that basis, he has the right to the wage of the like. Renting for removing a dead animal against its skin is more corrupt still, for the skin of the dead animal is impure and unsellable, and the animal has left ownership by its death; if he does it, he has the right to the wage of the like.
Renting for grinding a kurr against a qafiz of it, that is, of the ground grain, is not valid, based on the hadith of ad-Daraqutni raised to the Prophet (may the peace and blessings of Allah be upon him): "He prohibited the hire of the stallion for stud and the miller's qafiz", and because he made a part of the work the wage of the labor: the grinding becomes due for him and upon him; and because the remainder after the qafiz, being ground grain, is of unknown amount: the benefit becomes unknown. If he hires him against a known share of it, such as a sixth, it is valid. Renting a shepherd for a flock against a third of their dung, their offspring, their wool and their hair, or half or all of it, is not permitted, for the wage is unknown and does not count as a compensation in the sale. Ismail ibn Sa'id said: I asked Ahmad about the man who gives a cow to a man to feed and guard it, the offspring being between them: he said: "I dislike that"; Abu Ayyub and Abu Khaythama said the same. Ibn Qudama said: I know of no opponent in this, for the compensation is unknown and non-existent, one does not know whether it will come about, the principle being its non-existence, and it cannot count as a price. If it is objected: "you have permitted giving the mount to the one who works it for half its profit", we answer: that is permitted only by assimilation to the mudaraba, for it is an object that grows by work, hence the permissibility of stipulating a share of the growth, and of the musaqat as in the mudaraba; in our case, however, it is not possible, for the growth of the flock does not depend on his work. If he hires him for its keeping for a known term for half or a known share, it is valid, for the work, the wage and the term are known, as if the wage were set in dirhams; the growth obtained between them follows the ruling of ownership, for he thereby owns the share assigned to him, and its growth belongs to him as if he had bought it (al-Mughni, 5/255-256; Kashshaf al-Qina', 3/648; Sharh Muntaha al-Iradat, 4/10 and 4/15; Matalib uli an-nuha, 3/595).
The Hanafis said: the conclusion for whoever wants permissibility is that the owner of the wheat stipulates a qafiz of good flour, for the flour, if it is not attached to a determined wheat, falls due in the obligation; the wage, just as it can be a designated object, can be a debt in the obligation. Being valid, he may give him a quarter of the flour of this wheat if he wills, the condition having to be phrased: "a quarter of this wheat in good flour", so that the wage be of known quantity. Renting a shop against half of what is gained in it: the ijara is corrupt, and the renter owes the wage of the like of the shop; the corruption lies either in the profit being unknown, or in his having made the wage a part of what results from his work, in the meaning of the miller's qafiz (al-Muhit al-Burhani, 8/70 and 8/75; ad-Durr al-mukhtar, 6/57).
Ibn al-Qayyim (may Allah have mercy on him) said: the device for the permissibility of the miller's qafiz is to transfer to him the ownership of a part of the grain or of the olives, a quarter, a third or a half: he becomes a partner, then he grinds or presses, and the division takes place according to their rights of ownership. If he fears to transfer that to him, let him sell it to him for a deferred price: he becomes a partner, and when he works, he delivers to him his share or releases him from the price. If the hiree fears that the price be demanded from him while the whole is kept without his wage being paid, the device to secure him is that the origin be attested as shared between them before the work: as soon as he works upon it, it stands on the basis of the partnership. Such is the device for this whole chapter, and it is a lawful device: it involves neither the suppression of a right, nor the prohibition of a lawful thing, nor the legalization of a prohibited one (I'lam al-muwaqqi'in, 4/21).
Some Malikis, such as Ibn Rushd the grandson, who reported it from the school, some Hanafis, and the Hanbalis in a narration, which is the choice of shaykh al-Islam Ibn Taymiyya, hold that the wage can be a part of the object of the contract if it is a known share according to the Hanbalis, the school bearing upon that; Ibn Taymiyya and others weakened the hadith reported in it. Ibn Rushd said: renting the skinner against the skin, the miller against the bran or a sa' of flour, is permitted according to the school of Malik, for he hired him against a known part of the food, and the wage of the miller is that part, known as well (Bidayat al-mujtahid, 2/169). Such is what Ibn Rushd reported from the school of Malik, the famous view being contrary, unless his words are carried to the case of hiring against a known measure of bran, saying to the miller: "grind it and you have a sa' of bran", which is permitted, as if one hired against a known flayed skin to skin a sheep, as the Malikis previously said: it is also the school of the Hanbalis, as will come.
Shaykh al-Islam Ibn Taymiyya said: as for those who say that it is not permitted as an ijara because of the Prophet's prohibition of the miller's qafiz, it is answered that this hadith is invalid, having no basis whatsoever: it figures in no reliable book of hadith and no imam has narrated it. Medina had no miller grinding for a wage nor a baker baking for a wage. The people of Medina had, at the time of the Prophet (may the peace and blessings of Allah be upon him), no measure called qafiz: this measure appeared only at the conquest of Iraq, when the kharaj was imposed upon it; yet Iraq was not conquered at the time of the Prophet (may the peace and blessings of Allah be upon him). This and the like show that this statement is not from the Prophet (may the peace and blessings of Allah be upon him), but from some Iraqis who do not admit it by their interpretive effort. The hadith, indeed, is not in it the prohibition of stipulating a known share of the flour, but the prohibition of a named thing, the qafiz, which belongs to the muzara'a (Majmu' al-fatawa, 30/113).
The Hanbalis permitted it if it is a known share, such as half or a sixth; otherwise it is not valid, as I have set out in detail in the mudaraba; here is the text. Ibn Qudama said: if he gives his garment to a tailor to cut it into shirts to sell, half of their profit belonging to him in right of his work, it is permitted, according to the text of the narration of Harb. If he gives spun thread to a man to weave it into a garment against a third or a quarter of its price, it is permitted according to the text; Malik, Abu Hanifa and ash-Shafi'i permitted none of that, the compensation being a bearer unknown and the work unknown; the reason for the permissibility has been mentioned. If he assigns to him besides known dirhams, it is not permitted, according to the text, the permissibility coming from them, and the correct is the first view; Abu Bakr said: it is an old view, and nothing else has been narrated: it is therefore relied upon. Al-Athram said: I heard Abu Abdillah say: nothing hinders the garment given against the third and the quarter.
He was asked about the man who gives the garment against the third plus one or two dirhams: he said: "I dislike it, for it is an unknown thing; the third alone, without anything else, we see as permitted, based on the hadith of Jabir that the Prophet (may the peace and blessings of Allah be upon him) gave Khaybar against half". It is said to Abu Abdillah: if the weaver does not agree unless a dirham is added to the third, he said: "assign him a third, plus two tenths of a third, plus half of a tenth, and the like". Al-Athram reported from Ibn Sirin, an-Nakha'i, az-Zuhri, Ayyub and Yala ibn Hakim that they permitted it; Ibn al-Mundhir said: al-Hasan disliked all of it; Abu Thawr and the people of opinion said that all of it is corrupt, and Ibn al-Mundhir and Ibn Aqil chose that.
They said: if he gives a net to the fisherman to fish with it, the fish being shared in two halves between them, the whole of the fish belongs to the fisherman, and the owner of the net has the wage of the like. The analogy of what is narrated from Ahmad confirms the validity of the partnership and of what is gained between them according to their conditions, for the net is an object that grows through work: its being given against a share of its growth is therefore valid, like the land (al-Mughni, 5/7-8).
The harvesting of a crop, the suckling of a lamb, the keeping of property and the like are valid, like the building of a house, of a mill, the carving of a door, or the grinding of wheat against a known share: for these are objects that grow through work, the contract upon a share of their growth is therefore valid, like the tree in the musaqat and the land in the muzara'a. Deriving them from the mudaraba upon merchandise is not valid, for the latter takes place only through trade and disposal over the body of the property, unlike our case. The hadith of ad-Daraqutni, that the Prophet (may the peace and blessings of Allah be upon him) prohibited the hire of the stallion for stud and the miller's qafiz, does not oppose it: it is carried to the qafiz of ground grain, whose remainder after it is unknown, the benefit becoming unknown, whereas the measure here is a known share, unlike the case where a qafiz would be fixed, whose remainder would be unknown, the benefit becoming unknown.
If the known share is assigned together with a dirham or more, it is not valid according to the text, but valid as a sale and the like, like renting a mount for the transport of goods or for the expedition (ghazw), against a share of its profit, that is, of the goods carried, or a share of its share, that is, of the mount: an explicit text for the one who gives his horse for half of the spoils. Unlike: "sell my slave or rent him out, and the price or the wage be between us": it is not valid, the price or the wage belongs to the owner, and the other has the wage of the like (al-Furu', 4/298; al-Insaf, 5/454; Kashshaf al-Qina', 3/615-616; Sharh Muntaha al-Iradat, 3/589-590; Matalib uli an-nuha, 3/543; Manar as-sabil, 2/197-198).
Several conditions are required of the benefit that is the object of the contract. The first is that it be known: no disagreement exists among the jurists of the four schools on the requirement that the benefit be known by object, quantity and quality, for the lessor and the lessee, for it is the object of the contract: knowledge of it is required as in the sale; if the benefit is unknown, the ijara is not valid, as if the merchandise were unknown (al-Hidaya sharh al-Bidaya, 3/231-232; al-Ikhtiyar, 3/62; al-Jawhara an-nayyira, 3/232 and 3/325; Mukhtasar al-Waqaya, 2/110-111; adh-Dhakhira, 5/415; Hashiyat as-Sawi with ash-Sharh as-saghir, 8/468; al-Hawi al-kabir, 7/391-392; al-Muhadhdhab, 1/396; Rawdat at-talibin, 4/19-20; Mughni al-muhtaj, 3/391-392; an-Najm al-wahhaj, 5/342; al-Mubdi', 5/63; al-Insaf, 6/5-6; Kashshaf al-Qina', 3/643; Sharh Muntaha al-Iradat, 4/8; ar-Rawd al-murbi', 2/89).
The manner of knowing the benefit is specified as follows. The Hanafis said: benefits at times become known through the term, as in renting houses for residence and lands for agriculture: the contract is valid upon a known term, for the benefits of houses and lands are known only through the estimation of the term. If the term is unknown, the contracting parties differ, one saying a month, the other more: dispute arises.
At times the benefit becomes known through the work and the naming, as in the one who hires a man to dye his garment or sew it, or rents a mount to carry a known quantity or cover a named distance. As soon as he has described the garment as of cotton, linen, wool or silk, described the color of the dye, its quantity, the kind of sewing, Persian or Roman, the quantity carried upon the mount, its kind and the distance, the benefit becomes known and the contract is valid.
The fodder and the watering of the rented mount fall upon the lessor, for it is his property: if the lessee feeds it without his permission, he is a volunteer and cannot claim anything from the lessor. If its fodder is stipulated upon the lessee, the contract is not permitted, the quantity being unknown and the contract not being able to conclude upon an unknown compensation. Renting a mount against its fodder is likewise not permitted, because of the ignorance of the wage, the knowledge of which is a condition.
At times the benefit becomes known through determination and gesture, as in the one who hires a man to carry his food to a known place: as soon as he shows him what he carries and the place of destination, the benefit becomes known and the contract is valid (al-Hidaya sharh al-Bidaya, 3/231-232; al-Ikhtiyar, 3/62; al-Jawhara an-nayyira, 3/232 and 3/325; Mukhtasar al-Waqaya, 2/110-111; Tabyin al-haqa'iq, 5/106; al-Bahr ar-ra'iq, 8/4-5).
The Shafi'is said: if the determined object has only one benefit, the ijara is referred to it; if it has several benefits, the description becomes necessary.
The estimation of the benefit varies according to its type: some benefits are estimated by time, others by work, and for others both modes are valid.
First case: what is estimated by time, with ignorance of the quantity of the work, covers every benefit that cannot be delimited otherwise, which decreases and increases, shortens or lengthens: like the renting of houses for residence, whose duration varies; the hire for suckling, what the infant drinks of milk varying; or the hire for plastering a wall, the plastering being impossible to delimit in thinness and thickness. Such benefits can only be estimated by time, their attainment not being delimitable otherwise. This is why there came upon the tongue of Shu'ayb (peace be upon him):
"on condition that you hire yourself to me for eight (years)."
Surah Al-Qasas, 27
the benefit of the hire of Musa (peace be upon him) having been estimated by time, the engagement bearing upon the shepherding of flocks and the like, shepherding being of this type of benefits.
Duration of the ijara: when the benefit is estimated by time, a known term is required, during which the rented object remains available in general, so that the lessee may consume the benefit that is the object of the contract. The reference for knowing the term during which each object remains available in general is custom and the people of experience, and this varies from one object to another: the land, for instance, may be rented for a hundred years or more; the house thirty years; the mount ten years. So it is with everything according to what suits it, the people of experience estimating that it remains available during that term.
Second case: what is estimated by work without the term is the case where the benefit is known in itself but may take a time short or long, impossible to delimit by it. It is like hiring for the sewing of a garment, the plastering of a wall, the cooking of a meal and the like. These benefits are estimated by the work, not by time, for the time may lengthen or shorten, whereas the work is delimited and determined.
Third case: where both estimations are valid is like hiring a person for sewing, or a caravan for transport. The estimation by time is valid, as in renting a day to sew this garment; and the estimation by work is valid, as in renting the caravan to be carried from Medina to Mecca, without considering the time required. Just as it is valid to rent the caravan for a day or two, the benefit being estimated by time, whether it covered the distance or not, whether he rode it or not (al-Hawi al-kabir, 7/391-392; al-Muhadhdhab, 1/396; Rawdat at-talibin, 4/19-20; Mughni al-muhtaj, 3/391-392; Nihayat al-muhtaj, 5/619; an-Najm al-wahhaj, 5/342; ad-Dibaj, 2/464-465).
The Hanbalis said: knowledge of the benefit is obtained through two ways. The first is custom (urf), that is, what people recognize among themselves, like the residence of a house for a month: residence is recognized among people, its variation being slight, with no need of delimitation. Likewise the service of a human for a year: the service is also known by custom, with no need of delimitation like the residence; he serves for the time that custom requires, from sunrise to sunset, and by night what belongs to the service of ordinary people.
When there is a custom for both, it dispenses from determining the benefit and describing it, and the absolute is referred to custom, which presents itself at once to the mind. If the custom of the house is residence, or even without custom, if he rents it for that, he has the right to residence, to placing his belongings in it, and he leaves in it food according to the custom of the dweller, and he has the right to the water of the well as accessory of the house according to the soundest position.
The second way is the description, like the transport of an iron bar of known weight to a determined place: the mention of the weight and of the place of destination is required, for the benefit is known only through that, and the same applies to everything carried.
The hire for the construction of a house is valid, for it is a lawful benefit, the construction being estimated by time, a day or a month; if it is estimated by work, as in hiring for building a wall, the mention of the place of construction is required, for it varies according to the proximity of water and the ease of the soil, as well as the length, the width, the thickness of the wall and its materials: clay, mud bricks, fired bricks, and others such as plaster, for the knowledge of the benefit is obtained only through that, and the purpose varying, its mention is required. If one hires for a known construction, like a wall described as above, or to build within a known time, a day or a week, and the worker builds and then the construction collapses, he has fulfilled what was incumbent upon him and has the right to the full wage, for the collapse is neither of his doing nor of his neglect, so long as it does not come from him; if it comes from him, through negligence or an unstable construction, he must rebuild it and pay the indemnity for what was lost through his neglect.
If the ijara bears upon a transport, knowledge of the rider by sight or description is required together with the mention of the place, as well as knowledge of the kind of the mount, as in the sale if the mount is not visible, the purposes varying according to the kinds of mount: horse, camel, mule or donkey; and knowledge of the manner of walking, like the swift gait (himlaj) and other, is required, the purpose varying according to it.
In the hire for transporting what may be damaged in being carried, such as pottery (fakhkhar) or glass, knowledge of the carrier, human or beast, and whether he carries it himself or upon his mount, is required; knowledge of the carried thing by sight or description if it is pottery or the like, and the mention of its kind and quantity otherwise. In the hire for plowing, knowledge of the land by sight is required, for plowing varies with it between ease and difficulty, not being delimitable by description (al-Kafi, 2/305; al-Mubdi', 5/63; al-Insaf, 6/5-6; Kashshaf al-Qina', 3/643; Sharh Muntaha al-Iradat, 4/8; ar-Rawd al-murbi', 2/89; Matalib uli an-nuha, 3/583).
The ijara is either estimated by a term, as in renting houses for residence, or estimated by a work, as in building a wall, sewing a shirt, carrying to a determined place; and when the one hired is of those who have a work, both modes are valid: his hire may be estimated by a term and by a work.
The jurists differed: is it valid to combine in the benefit of the ijara the term and the work, estimating the benefit by time and work together, as in: "I hire you to sew this garment in one day", "to build this wall in two days", or "to carry me from Egypt to Mecca in three days"; or is it not valid and the ijara corrupt? The majority of jurists, Abu Hanifa, the Malikis according to the famous view whose detail is to come, the Shafi'is according to the sounder view, and the Hanbalis according to the school, hold that the combination is not valid: as soon as the estimation is by term, estimation by work is no longer permitted, and if it is by work, estimation by term is no longer valid. The combination indeed increases the uncertainty of the ijara without any need for it: he may complete the work before the end of the term; if he is employed during the remainder, he exceeds what the contract bore upon; if he does not work, he leaves part of the work: it is an avoidable uncertainty, without equivalent in the matters of consensus, and the contract therefore does not combine with it.
And because the mention of time proves that the benefit is the object of the contract, and the mention of the work proves that it is the object: the benefit of the lessee in the second, that of the hiree in the first, with no preference of the one over the other, each of them being able to be the object of the contract in the ijara: the object thus becomes unknown with an ignorance leading to dispute.
The Hanbalis said: the combination is valid as a ju'ala (promised reward), for what is neglected there is not neglected in the ijara. If the work is completed before the end of the term, the work of the remainder is not incumbent upon him, like the repayment of a debt before its term; if the term elapses before the work, if he chooses to confirm the contract, he demands only the work, like the beneficiary of the salam who is patient in face of the difficulty; if he rescinds before the work, the wage and the work fall away, even after a partial execution: if the rescission comes from the one who promises, the wage of the like returns to the worker; if it comes from the worker, he has no right to anything (Kashshaf al-Qina', 4/12; Matalib uli an-nuha, 3/636).
The two Hanafi companions Abu Yusuf and Muhammad, the Malikis in a view whose detail is to come, the Shafi'is according to the view opposite to the sounder, and Ahmad in a narration, hold that combining the term and the work is permitted, for the ijara bears upon the work, and the term is mentioned for the advance: nothing opposes that. According to Abu Yusuf and Muhammad, the contract bears upon the work without the day: if he completes half of the day's work, the full wage is due to him, and if he does not complete within the day, he may perform it the next day.
According to the view opposite to the sounder among the Shafi'is, two views exist: the sounder of the two is that he obtains the wage at whichever comes first: if the day elapses before the completion of the work, he obtains it; if the work is completed before the end of the day, he obtains it as well. The second: the work is what is taken into account: if the work is completed first, he obtains it; if the day is completed first, its completion becomes obligatory.
The Hanbalis said: on this basis, if the work is completed before the end of the term, the work of the remainder is not incumbent upon him, for he fulfilled what was incumbent upon him before its term, and nothing else is binding, like the one who repays a debt before its term. If the term elapses before the work, the lessee may rescind the ijara, the hiree not having fulfilled his condition; if he accepts to keep him, the hiree can no longer rescind, the breach of the condition coming from him and thus not serving him as a means of rescission. As if the delivery of the salam became impossible at its term: the beneficiary of the salam cannot rescind, but the one who owes it can; if he chooses to confirm the contract, he demands only the work, like the beneficiary of the salam who is patient in face of the difficulty of delivery until it becomes possible, without being entitled to more than the salam. If the contract is rescinded before any execution, the wage and the work fall away; if it is rescinded after a partial execution, the wage of the like is due, the contract being rescinded, the named wage fallen away and the return to the wage of the like taking place (al-Mabsut, 16/59; al-Bahr ar-ra'iq, 8/27; Mukhtasar al-Waqaya, 2/120-121; Durrar al-hukkam, 1/552; al-Hawi al-kabir, 7/391-392; al-Muhadhdhab, 1/396; al-Bayan, 7/303-304; Rawdat at-talibin, 4/19-20; Mughni al-muhtaj, 3/393; Nihayat al-muhtaj, 5/321; an-Najm al-wahhaj, 5/344; ad-Dibaj, 2/465; al-Mughni, 5/253-254; al-Kafi, 2/309; ash-Sharh al-kabir, 6/62; al-Mubdi', 5/90; al-Insaf, 6/45; Kashshaf al-Qina', 4/12; Sharh Muntaha al-Iradat, 4/40; Matalib uli an-nuha, 3/636; Manar as-sabil, 2/217).
The detail of the Maliki school is that the ijara can be delimited by a time, a day, a month or a year, or also by a work, like the sewing of a garment, of a jubba, and the like of determined things. They then differ: does the ijara become corrupt if the time and the work are combined on this basis?
If he combines the time and the work making them equal, as in: "sew me this garment within this day for such a sum", while the habit is that he sews it in a whole day, neither less nor more, there is a divergence: it is said that it becomes corrupt if the time equals the work, and Ibn Rushd reported consensus upon that, while Ibn Abd as-Salam mentioned that it is one of the two famous views; the other is the absence of corruption, which ad-Dardir and Ibn Abd as-Salam made famous.
If the time is broader than the work, the sewing being possible in half a day, Ibn Abd as-Salam reported permissibility by consensus, while Ibn Rushd prohibits it according to the famous view. As for: "I hire you to sell this garment within this day", it is permitted by consensus, the difference lying in the lightness of the uncertainty in the sale as against manufacturing: the ease of the sale within that time being stronger than that of the craft. If the time is much narrower than the work, the worker being unable to sew the garment in less than a day, there is no divergence on the prohibition, the corruption being evident.
According to the view of prohibition, if the ijara fails through the work, the worker has the right to the wage of the like, whether it is estimated in advance or in deferral. As for the view of permissibility, if he completes the work within the day he named, then (the source text breaks off here, the continuation being in the following part of the encyclopedia).