Rescission of the lease for a legitimate excuse

This part belongs to the full section: All sections of this part.

This chapter of al-Mawsua al-fiqhiyya examines the status of the lease contract (ijara) and its causes of annulment. The lease is an exchange contract that is, in principle, binding: the four schools agree that it only ends through a legitimate cause, not through the mere will of one party. The jurists then examine each cause in detail: the excuses that strike the lessor or the lessee, the loss or destruction of the leased object, the expiry of the term, mutual rescission (iqala), the death of one of the parties, and finally the sale of an object already leased.

Rescission of the lease for a legitimate excuse

The jurists agree that the lease contract is binding: it can only be rescinded by the consent of the two parties. The jurists of the four schools then differ: does the lease dissolve for excuses such as sickness, death or loss, and what are the excuses by which the lease contract is rescinded?

The Hanafis hold that the lease dissolves for an excuse, because the benefits, which are the object of the contract, have not yet been taken into possession: the excuse in a lease takes the place of the defect before taking possession in a sale, and rescinds the contract for that reason, the common criterion being the contractor's inability to continue performing what is owed to him without bearing additional harm that was not owed by the contract. Whoever hired a blacksmith to pull his aching tooth and whose pain ceased, or whoever hired a cook to prepare the wedding meal and whose tooth was pulled: the lease is rescinded, because continuing the performance would impose an additional harm not owed by the contract. Likewise whoever rented a shop in the market to trade in and lost his wealth, or whoever leased out a shop or a house and then went bankrupt, burdened with debts he can only repay with the rent of what he leased: the contract is rescinded and the property sold for the debts, because keeping the lease running would impose additional harm not owed by the contract, namely confinement.

Does it require the judge's ruling for this? Two views: one holds that it requires the judge's ruling to annul it, because it is a dissolution that requires juristic effort; the other holds that the judge's ruling is not needed, this situation taking the place of the defect before taking possession in the sold object, so the contractor rescinds on his own. Some were given the preferred position: if the excuse is apparent, the ruling is not needed because the excuse is evident; if it is not apparent, such as a debt, the ruling is needed to make the excuse appear.

Also excuses among the Hanafis are:

• Whoever hired a mount to travel and then abandoned the journey: it is an excuse, because if he had gone for pilgrimage, his time would have passed; if he went to claim his debt, his creditor would have arrived; if he went trading, he would have become poor.
• The sickness of the lessee, who can only travel by suffering harm.
• The lessee's abandonment of the journey for a reason that befalls him, such as his resolve not to travel this year, or if he rented a house in a town and then decided to travel and stop residing there: he may rescind, and the lessor may have him sworn before the judge, because he may intend rescission for a reason other than the one he declared.

If he found a camel-man cheaper than his own, or a house at a lower rent, he may not rescind, because he consented to the stated amount; likewise the lessor may not rescind if he finds more than the rent he received. If the lessee abandons the journey, it is not an excuse, because he can stay and send the animals with his student or hired man. If the lessor falls sick, the answer on the original narration is the same (no dissolution), but al-Karkhi, may Allah have mercy on him, mentioned that it is an excuse, and that is the more apparent view: he cannot avoid the harm, which is warded off from him out of necessity without being a choice, and he may not accept others driving his animals with him. If it is the camel-man who is sick, the apparent narration indicates that it is not an excuse; Abu al-Hasan said that it is an excuse.

Abu Yusuf, may Allah have mercy on him, was asked about a woman who gave birth on the day of the sacrifice, before performing the circumambulation of the visit, and whose camel-man refused to stay with her: he answered that it is an excuse that breaks the lease, because she cannot go out before the circumambulation, and the camel-man cannot be forced to stay the whole postpartum period; the lease is therefore rescinded to ward off harm from both. If she gave birth before, and no more than the length of a menstruation or less remained of the postpartum period, the camel-man is compelled to stay with her, because pilgrims customarily remain for that period after completing the pilgrimage.

Whoever hired a young servant to serve him in residence and then traveled: it is an excuse, because he cannot avoid the imposition of additional harm, the service of travel being harder, and the prevention of travel being harm; all of that was not owed by the contract, so it became an excuse, likewise if he released him, as mentioned, that he remains bound to residence. It differs from one who leases real property and then travels: there is no harm, since the lessee can obtain the benefit of the object of the contract during the lessor's absence, so even if the lessee wants to travel, it is an excuse, because it prevents the journey or obliges rent without residence, and that is harm. (Refs.: Bada'i' as-sana'i' 4/201; al-Hidaya 3/250-251; al-Jawhara an-nayyira 3/377, 380; al-Lubab 1/497, 499; Mukhtasar al-Wiqaya 2/123-124; al-Ikhtiyar 3/74.)

The majority of the jurists, that is, the Malikis, Shafi'is and Hanbalis, in general terms and with a detail to come for each of them, hold that the lease does not dissolve for an excuse, such as sickness or death.

The Malikis say that this is because of Allah, the Most High's, saying:

"Fulfill the covenants"

Surah Al-Ma'idah, 1

and because it is a purely exchange-based contract, so that neither party may rescind it for an obstacle affecting the contractor, like a sale; and because whatever cause leaves the lessor without the right to rescind the lease leaves the lessee without it too, the root being the increase or decrease of the rent; and because the principles have been established that whatever allows one of the two contractors to rescind allows the other to rescind for a similar cause, as in the partnership contract, agency and qirad, just as in sales where a defect in either counter-value gives each the right of rescission; and because the lessee's resolve to travel after renting a house, or his resolve to stay after renting a mount for pilgrimage, is an excuse that does not entail any deficiency in the object of the contract nor prevent obtaining the benefits, so it does not confer the right of rescission, like the lessor's resolve to stay after renting out a mount or a house. (Refs.: al-Ishraf 3/197-198, no. 1041; al-Ma'una 2/101-102.)

The Shafi'is say: it is not permissible to rescind the lease for an excuse that occurs if no defect has appeared in the object of the contract, by reason of Allah, the Most High's, saying:

"O you who believe, fulfill the covenants"

Surah Al-Ma'idah, 1

the generality of this command making the fulfillment of every contract obligatory unless a specializing proof stands; and because every contract that bound the two contractors in the absence of an excuse remains binding, so long as neither counter-value suffers deficiency, like a sale; and because every contract that bound the contractor in the absence of an excuse gives him no option through the occurrence of an excuse, like marriage; and because whatever cause leaves the lessor without the right of rescission leaves the lessee without it: thus the rent, whose increase is not a cause of rescission for the lessor, as its decrease is not for the lessee, its decrease for the lessee being like its increase for the lessor; and because it is a lease contract whose rescission for an excuse is not allowed, as with the lessor. Contracts are of two kinds: binding contracts that are not rescinded for an excuse, like sale, and non-binding contracts that are rescinded even without an excuse, like qirad. Since the lease contract was not attached to the non-binding kind in the permission of rescinding it without an excuse, it must be attached to the binding kind in invalidating its rescission for an excuse. (Ref.: al-Hawi al-kabir 7/393.)

The Hanbalis say: because it is a contract that may not be rescinded once the contracted benefit has been obtained, for any excuse, like a sale; and because if rescission for the lessee's excuse were allowed, it would be allowed for the lessor's excuse, out of equal treatment of the two contractors and to ward off harm from each of the two; yet it is not allowed, and here it is not allowed either, distinguished by an excuse outside the object of the contract. (Refs.: al-Mughni 5/260; Sharh az-Zarkashi 2/180, 182.)

This is the exposition and detail of the majority school's position on what allows rescission, what does not, and what carries an option.

The Malikis say: the lease is rescinded by the loss or the impossibility of enjoying what the benefit is extracted from, if that element is specific: a house, a shop, a bathhouse, a ship and the like. Impossibility is broader than loss: it includes disappearance, sickness, usurpation and the forced closing of shops, and other things, as will come. Once the lease is rescinded, compensation is reckoned in view of the benefit obtained or not obtained, and in view of the distance, long or short, easy or hard. It is not rescinded, however, by the loss or impossibility of what extracts the benefit: the resident, the rider or the carried load. Every object from which the benefit is extracted carries the lease's dissolution by its destruction: the death of a specific animal (the non-specific animal does not entail dissolution by its death) or the collapse of a specific house. Every object by which the benefit is extracted does not entail the lease's dissolution whether that object is specific or not, and whether the loss is celestial or otherwise, such as the carrier's doing, on the soundest view: the death of the person hired for the specific object, or the destruction of the carried load; his heir stands in his place in extracting the remaining benefit after his testator's death, and it is said to the resident, the rider, the owner of the load or his heir: you owe the entire rent, and bring one like the first to complete the distance or the duration.

A man was hired to pull an aching tooth, the pain ceased before the extraction, and the other party confirmed him: the lease continues; otherwise he is only confirmed upon evidence. The benefit of not believing him is the continuation of the rent, without forcing him to the extraction; it has been said that his oath is accepted regarding the pain's cessation unless there is a clue proving his lie, since it is a matter known only to him; ad-Dasuqi said that his oath follows, in its direction or otherwise, the rule of oaths of suspicion.

The lease of the rented house is rescinded by its usurpation (likewise the animal and the farmland), or the usurpation of its benefit, when the usurper is not subject to the rulings; if he is, it is not rescinded. The place of the lease's rescission by the usurpation of the rented object or its benefit is the lessee's choice: if he rescinds it, the rent of the usurped person is owed by the usurper to the owner; if he keeps his lease without rescission, he becomes, alongside the usurper, like the owner if he farms or resides, and the rent goes to him. The meaning of rescission in these issues is that the lease is open to rescission, not that it is actually rescinded. Likewise, the lease of shops dissolves if the ruler or a tyrant orders the closing of the rented shops to the point that their lessee cannot benefit from them: this is the famous view, and the rent is owed to the owner by the ruler or the tyrant, who only intended the usurpation of the benefit, not the thing itself.

Likewise, the wet nurse's lease dissolves if her pregnancy appears when she was not visibly pregnant at the time of the contract, and then shows: breastfeeding normally becomes impossible during pregnancy, the pregnant woman's milk harming the nursling, or through her illness preventing her from nursing; otherwise her family has the option. Likewise, the lease dissolves if the slave falls sick with no ability to perform what he was hired for, or if the enemy carried him off by force to war territory or a place similar in remoteness: the lessee cannot benefit in any of that; if he returns from his flight, or recovers from his illness within the remainder of the term, the whole term binds him, unless the parties rescinded before that. The days of flight are waived for the lessee, and the parties may not agree to make up the period of flight: it would be dissolving what is in the liability belatedly, since the rent corresponding to the days of flight has already become owed to the lessee, so they would be dissolving something that cannot be anticipated; except if the wage has been received. This differs from an animal sick on a journey and then recovered: the rent dissolves and does not return for the remaining harm of the journey, which must be borne with patience.

The lessee was given the choice of rescinding the lease if it appears that the hired slave (or other) is a thief: it is a defect that establishes the option, as in sale, provided he was hired for house service and the like, from which one can safeguard against him; but if he was hired to dwell in a house and the like, the lease does not dissolve merely because he is known to be a thief. He was also given the choice if the minor, whose guardian (father, executor, judge, or one appointed over him) contracted his person or his property while he was a minor, attains majority and sound judgment before the end of the term: he chooses between keeping it until the full term and rescinding; unless the guardian thought him not yet of age, and then he comes of age with only a little of the term remaining, such as a month or a few days: the remainder of the term binds him, in view of the contract on his person with these two conditions, and he has no option. As for the contract on his property, Ibn al-Qasim's position is that it binds him as the contracts on the spendthrift's property do, namely three years, and that is the more probable; the opposite view of Ashhab is that the contract on his property, like the contract on his person, only binds him if the guardian thought him not yet of age, with a month remaining. The summary of the issue: if the guardian contracted the minor or his property and he becomes of age and rational during the term, he has the option if the guardian thought him of age or doubted outright, whether a little or much remains; if the guardian thought him not of age during the term and then he comes of age, the contract on his person binds him if little remains, and the contract on his property binds him even if much remains. Likewise the spendthrift whose guardian contracted his property or his person for his upkeep for three years or more, and who becomes rational during it: the lease binds him and he has no option, because the guardian did what he was allowed, and he may only contract the spendthrift's person for his upkeep; if the spendthrift hired himself out, his guardian has no say, unless by favoritism; likewise if he becomes rational: his act is not interdicted, being like the act of a rational man; the presumption of the spendthrift's irrationality is not considered, nor the presumption of his rationality at the time of the contract on his property or person for his upkeep, unlike the minor, whose term is known, unlike rationality. (Refs.: al-Mudawwana al-kubra 11/456; ash-Sharh al-kabir with hashiya ad-Dasuqi 5/378, 385; Mawahib al-jalil 7/431, 434; at-Taj wa-l-iklil 4/503, 509; Sharh mukhtasar Khalil 7/30, 34; adh-Dhakhira 5/537; Tahrir al-mukhtasar 4/580, 584; al-Fawakih ad-dawani 2/112-113; Sharh as-saghir with as-Sawi 9/47, 52.)

The lease is rescinded by the death of an entitled beneficiary of a waqf who leased that waqf during his lifetime for a fixed term and died before it ended, the entitlement passing to one of his tier or to the one after him, on the soundest view. That is: if a man endowed a thing in waqf for his children tier after tier, or belly after belly, or for Zayd and then Amr after him, and the first tier, or the first belly, leased it, or Zayd leased it, and then the lessor died and the right passed to the one after him: the lease dissolves, and the lease goes to the one to whom the waqf passes, even if only a little of the term remains: it is a right belonging to others.

The lease does not dissolve by the owner's acknowledgment concerning the leased thing, house, slave or animal, when he says that the thing is leased to another and that he had sold it to him before the lease contract: the lease does not dissolve by that, because the acknowledging party is suspected of nullifying the lease; and the owner's acknowledgment of a sale is like his acknowledgment of a lease to another: the acknowledged party takes the thing at the end of the term, together with the surplus of the rent of the like and the rent for which it was leased.

The lease also does not dissolve if the lessor is late in bringing the animal at the time he promised the lessee, even if what the lessee intended (seeing someone off or receiving someone) is missed, if the time was not fixed and it is not pilgrimage, whether the animal was specified or not. But if the time was fixed ("I hire your animal to ride it on this day", "to serve me, sew for me or grind for me on this day"), or he said "I make the pilgrimage on it", and the lessor did not bring the leased thing before that fixed time expired, or the pilgrimage was missed: the rent dissolves, because the days of pilgrimage are fixed; once they are missed the rent dissolves, and likewise for everything rented for specific days. The lessee has no right to consent with the lessor to prolong the lease after the rent has been annulled, because one does not dissolve a debt into a deferred debt; if the rent has not been annulled, that is allowed, the mentioned cause being absent. The "fixed time" means that no work is combined with it; if he combines the two, the work is what counts, like one who says "I hire your animal to ride it on this day", or "your ox to grind an irdabb on it for me on this day": riding or grinding is what counts, not the time specifically; as for pilgrimage, it is not fixed, but it was attached to it: its reality is not fixed, for just as it occurs this year, it occurs the following year, even though its days are fixed.

Likewise, the lease does not dissolve if the lessee turns out to be dissolute, drinking wine in the house, committing fornication or exposing in it prostitution, musical instruments and flutes, or the like, unless the judge orders him to refrain from that: if he does not stop, he is evicted and the rent is demanded of him. al-Lakhmi said: I see that he be evicted if its rent from his day, or close to it, cannot be obtained, until one comes who will rent it; if he finds no renter until the month he rented it has ended, the rent does not fall away from him; and this is for the exigible rent, the monthly wage and the rent paid in cash; otherwise, the contract is not binding. (Refs.: al-Mudawwana al-kubra 11/456; ash-Sharh al-kabir with ad-Dasuqi 5/378, 385; Mawahib al-jalil 7/431, 434; at-Taj wa-l-iklil 4/503, 509; Sharh mukhtasar Khalil 7/30, 34; adh-Dhakhira 5/537; Tahrir al-mukhtasar 4/580, 584; al-Fawakih ad-dawani 2/112-113; Sharh as-saghir with as-Sawi 9/47, 52.)

The Shafi'is say: the overriding causes requiring rescission, that is, the cases in which dissolution and dissolvability are established by a defect occurring in the object of the contract, are three categories.

• The first: what diminishes the benefit. As soon as a deficiency by which the rent varies appears in the leased thing, it is a defect establishing rescission: the sickness of the slave or the animal, the cutting or alteration of the well's water to the point of preventing drinking, the breaking of the house's pillars, the bowing of its walls, the collapse of part of them. If the lessor hastened to repair, and the thing was repairable at once, the lessee's option falls, as mentioned, whether the defect preceded the contract and taking possession or occurred in the lessee's hands. If the defect appears before a period for which a rent was set has elapsed: if he wishes, he rescinds with nothing against him; if he wishes, he confirms with the entire rent. If it appears during the term, an-Nawawi said the answer is what al-Mutawalli mentioned: if he wants rescission for the whole term, he is like one who bought two slaves, one of which perished, then found a defect in the remaining one and wanted to rescind both; if he wants rescission for the remainder of the term, he is like one wanting rescission of the remaining slave alone, whose ruling is mentioned in sale; the majority stated the entitlement to rescission without entering into this detail. Once rescission is prevented, he has compensation (arsh): the rent of the sound like and of the defective like is appraised, and the difference is then known; all of this for the lease of an object. As for a defect found in a liability-based lease with the animal delivered: no rescission, rather he returns it and the lessor must replace it.
• The second category: the total, perceptible loss of the benefit, among whose forms are the death of the animal and of the specified hired man. If it occurs before taking possession or right after, before a period for which a like rent is due has elapsed, the contract dissolves; if it occurs during the term, the contract dissolves for the remainder, not for the past, on the more apparent view, the advantage having settled through taking possession. The opposite view: it dissolves for the past too, because the contract is one and has already dissolved for the whole term. If we say it dissolves for the past, the named wage falls away and the rent of the like becomes due for what has elapsed; if we say it does not dissolve there, does he have the option of rescission? Two views: the sounder of the two, with the Imam and al-Baghawi, is the negation, his benefits having been consumed; the other is the affirmation, adopted by Ibn as-Sabbagh and others, since the whole object of the contract was not delivered; if we say he has rescission and he rescinds, one returns to the rent of the like. If we say there is no rescission, or he confirms, the proportional share of what has elapsed of the named amount is owed, with distribution according to the value of the benefit, that is, the rent of the like, not according to time itself, which varies: the rent of one month may exceed the rent of two months because of the great demand in that month. If the lease term is a year, half of which has elapsed, and the rent of the like of the first half is, for example, double that of the remaining half, two-thirds of the named amount are owed; if it is the reverse, one-third. Once the option is established by a defect and the contract rescinded prospectively, dissolution in the past follows two paths: if it does not dissolve, the path of distribution is as we described; if he confirms, the entire named rent is owed to him, like one who accepts the defect of the sold thing and owes the whole price. Loss through a celestial calamity or through the lessee's act is equal: even if the specified slave or animal was killed, the ruling of dissolution and rent remains as we described, and he guarantees in addition the value of what he destroyed; according to Ibn Abi Hurayra, the named wage settles upon him through destruction, as the price settles upon the buyer who destroys. The first view is the sounder: sale is over the object, which becomes possessed by its destroyer; the lease is over benefits, and the benefits of future time are nonexistent, so destruction cannot be conceived of with regard to them. On this basis, if the lessee damages the house or wounds the slave, it is like the defect through a celestial calamity in establishing the options. The lease dissolves by the house's collapse on the more apparent view, the name having vanished and the benefit lost; on the opposite view it does not dissolve; if the house is dilapidated without collapsing, it does not dissolve, but the option of delay is established. If land was rented for cultivation with its customary water and the water is cut off, the lessee has no rescission of the contract on the more apparent view: the land's name remains and its rain-fed cultivation remains possible; the option of delay is established for the defect, whose cause is the impossibility of taking the benefit, which repeats with the repetition of time. The option is only established if the cultivation is cut off: if the lessor says "I will bring you water from another place", the option falls, like one who hastened to repair the house; a mere promise to bring the water should not suffice. On the opposite view it dissolves: if we say by automatic dissolution, the ruling is that of the slave's death; otherwise he has rescission for the remaining term, and for the past two views: if we prevent it, the proportional share of the elapsed named amount is owed, and if he confirms, the whole amount binds him; it has been said that a reduction is made from him for the collapse and the water cut-off, to the extent they concern him. If the land is drowned by the water of a spring that gushes in it, or by a flood, it is like the house's collapse.
• The third category: the loss of the benefit legally, like its perceptible loss, in requiring automatic dissolution, because extraction has become impossible. If one is hired to pull an aching tooth, treat a rotten hand, or carry out retribution on a life or a limb, the lease is valid on the soundest view, as mentioned; if the pain ceases or retribution is pardoned, the majority stated that the lease dissolves. Two objections: the benefit of this lease is fixed by the work, not by time, and it is not despaired of, since the pain may return: the cessation of pain should therefore be treated like the usurpation of the rented thing, establishing the option of rescission without automatic dissolution. And shaykh Abu Muhammad related a view that the lease does not dissolve, but the hired man is employed to pull out a nail or a peg, taking into account the closeness of the two works: this is weak; the strong view is what has been said: the ruling of automatic dissolution is the answer to this, that the thing which extracts is not replaced; were we to allow it, he would be ordered to pull another's aching tooth.

They then said: the lease is not dissolved, whether over an object or liability-based, by an excuse outside the object of the contract, whether from the lessor or the lessee, and no rescission is established by it: such as one who hired an animal to travel and then fell sick, a shop for a craft that collapsed, or whose tools of that craft were lost, or a bathhouse whose heating became impossible. Likewise if the excuse belongs to the lessor: he fell sick and cannot go out with the animal; or his family, who were traveling, returned and he needs the house; or he married: in none of that is there rescission, since no defect occurs in the object of the contract, and substitution remains possible for each of them. The place of non-dissolution is every excuse other than the legal excuse; as for the legal one, it is like one who hired a man to pull an aching tooth and whose pain ceased: the lease dissolves, because the extraction has become legally impossible.

Remark: excepted from that is the lease concluded by the imam with a dhimmi for jihad, prevented by a truce concluded before the army marches: it is an excuse for the imam to recover the entire wage, as al-Mawardi said. The lessee's bankruptcy before delivering the rent and the term elapsing gives the lessor the right of rescission, as stated outright in ar-Rawda, its root being in the chapter on bankruptcy. Ibn as-Salah, may Allah have mercy on him, gave a fatwa that the lease does not dissolve through bankruptcy when the rent is earned at the end of each month: the rent is not owed before the month ends, and after it the benefit has passed, and likewise the work each month, so rescission is not conceivable then; it is only conceivable if the whole lease is exigible at once.

People not frequenting the rented bathhouse because of a fitna that occurred, or the ruin of the neighborhood, is not a defect establishing the option, as az-Zarkashi said, contrary to ar-Ruyani: no defect occurring in the object of the contract. If one rented land for cultivation, sowed it, and the crop perished through a calamity, a flood, intense heat, hail, excess rain or the like, before its harvest, or it did not sprout: he has no rescission nor any reduction of the rent, because the calamity struck the lessee's crop, not the land's benefit, so it is like one who rented a shop to sell cloth and whose cloth burned: the lease is not rescinded. If the land is spoiled by a calamity that nullifies its fertility during the lease term, the lease dissolves for the remaining term. If the land then spoils after the crop has spoiled, does he recover anything of the rent? Two views related from the Imam: the sounder of the two, with al-Ghazali, is denial, since had the land remained sound, the lessee would have gained no benefit from it after the loss of the crop; the other, adopted by some of the Imam's companions, is recovery, since the land's remaining in its state is sought, so that its loss establishes dissolution. If the crop spoiled after the land, the sounder of the two views, by consensus, is recovery.

The lease, even liability-based, does not dissolve through the death of both contractors or one of them: it remains until the term ends, because it is a binding contract that does not dissolve through death, like sale; the object is left after the lessor's death in the lessee's or his heir's hands, so that he may extract the benefit from it. If the lease is liability-based, what was contracted is a debt against him: if the estate has what suffices to pay it, it is hired out to fulfill it; otherwise the heir has the option: if he wishes, he fulfills it and takes the rent; if he wishes, he declines, and the lessee rescinds the lease. Excepted is the case where a house was bequeathed to Zayd for the length of Zayd's life: he accepts the bequest, Zayd leases it for a term and then dies during it: the lease dissolves, his right having ended at his death. Nor does it dissolve through the death of the waqf's administrator, whether a judge, his appointee, or one to whom oversight of all the tiers was stipulated. If the first tier of the waqf's beneficiaries leased the endowed property for a term and that lessor tier died before its end, while the endower stipulated oversight for each tier only for the duration of its entitlement; or if the guardian hired out a minor's person or property for a term in which the minor does not reach majority by age, but reaches it by seminal emission while being rational: the soundest view is its dissolution for the remainder of the term in the waqf, whose entitlement passes at the lessor's death to another who has neither guardianship nor delegation over him; as for the minor, the lease does not dissolve, because the guardian built his act upon benefit without limiting his oversight, and similar to reaching majority by emission are the madman's recovery and the spendthrift's rationality. On the second view, it does not dissolve in the waqf, as in owned property, but dissolves in the minor's case, once the absence of guardianship after majority has been shown; as for the elapsed part of the term, it does not dissolve there. If he reaches majority by emission while being a spendthrift, the lease never dissolves; if it was hired out for a term in which he reaches majority by age, the excess portion becomes void once he becomes rational.

The usurpation of the animal and its return, or the slave's flight without the lessee's negligence, when the lease fell upon both specified objects, establishes the option once a period is estimated, extracting the remainder having become impossible; upon rescission, it applies to the remainder of the term, and for the past the disagreement occurs as in the death of the specified animal. If the lessor hastened, taking the object back from the usurper and returning the runaway animal and the runaway slave before a period for which a like rent is due has elapsed, the lessee's option falls, and the lease had not dissolved, the object of the contract remaining. If he rescinds, it is clear; if he confirms without return until the term ends, the lease dissolves, and the proportional share of the named amount that was obtained settles. As for the liability-based lease, the lessor must replace in it; if he is unable, the judge has it hired out for him, the liability-based specified object not behaving like the specified object in the contract. As for the lease of an object measured by work, it is not dissolved by usurpation of this kind: the lessee obtains it whenever he can, like the camel ridden to Mecca, obtained whenever one can; because the benefit measured by work, though its delivery is owed after the contract, is not lost by the passage of time; if the lease was measured by time, it dissolves for what has elapsed of it, and the object is used for the remainder; if he did not rescind and the term ends, the lease dissolves: if that was due to the lessee's negligence, the entire named amount binds him, like one negligent with a slave he guaranteed. The lessee has no right to litigate against the usurper, like the borrower and the depositary.

The disagreement occurs in usurpation by a third party; as for the owner's usurpation after taking possession, or before it through his refusal to deliver, there are two paths: one like the third-party usurper, the sounder of which is automatic dissolution, even if it is the lessee who usurps, which is conceivable through his taking the object from the owner without his permission before the lease ends, the rent then settling upon him; in the liability-based lease there is no option, and the lessor must replace. If one hired a specific camel, or liability-based, and the lessor delivered its object, and it fled, leaving it with the lessee: no rescission for him, and no option either; if he wishes, he may provide its fodder gratuitously, otherwise the judge is approached to feed it from the camel-man's money, or from that of whoever keeps it; if he finds no money for it, and there is no surplus among the camels, the judge borrows from the lessee, a stranger, or the public treasury, because that is what is possible, and the judge is the overseer of the absentees' wealth; it may even become necessary through the circumstance. If he trusts the lessee, he hands him what he borrowed; if he borrowed it from him to spend on it; otherwise, not trusting him, he keeps what he borrowed with a trustworthy man who spends it. The judge, if he finds no money to borrow, may sell some of them for the amount of its expense and its fodder, at the cost of maintaining it. If he authorized the lessee to spend from his own money in order to recover, it is allowed on the more apparent view: it is a place of necessity, like if he had borrowed from him and handed it to him, and because the judge may find no one else. The other path is prohibition, because it leads to the owner's word prevailing over what he claims against another: rather, the money is taken and handed to a trustworthy custodian. Hence, if they differ over the amount spent, the sound view is that the spender's word prevails if he claims a customary expense. On the more apparent view: if a customary expense was fixed for him, he does not exceed it, the surplus being a gift; if he spent without the judge's authorization while it was possible, no recovery; if there was no judge and he spent, witnessed and conditioned recovery, recovery takes place on the soundest view. (Refs.: al-Hawi al-kabir 7/393, 401; Rawdat at-talibin 4/65, 73; Mughni al-muhtaj 3/416, 420; Kanz ar-raghibin 3/202, 204; Nihayat al-muhtaj 5/360, 366; an-Najm al-wahhaj 5/384, 393; ad-Dibaj 2/485, 489.)

The cases in which the lease dissolves: defect of the object, obstruction and flight

The Hanbalis say: the lease is a binding contract; neither of the two parties has the right to rescind it without a cause, because it is an exchange contract, like sale. And the lease dissolves by the following.

First: if a defect is found in the leased object that was not known, the rescission of the contract is owed without disagreement among the scholars, as Ibn Qudama said in al-Mughni: it is a defect in the object of the contract, and so it established the option for him, like the defect in the sold thing. The defect that rescinds the lease is the one that diminishes the benefit and reveals the variation of the rent, and it is rescinded by it so long as the defect does not disappear without harm reaching the lessee. Examples of defect are:

• a vicious animal that kicks, bites, shies, lags, stumbles on its back while walking, limps and lags behind the caravan, or strikes the load with its belly;
• a servant hired for service who is weak of sight, mad, leprous, afflicted with vitiligo, or sick;
• a house whose wall has crumbled, or whose collapse is feared, or the cutting of its well's water or its alteration to the point of preventing drinking and ablution: the option of rescission is established, and likewise similar defects.

If the lessee consents to stay and does not rescind the lease, the entire named rent binds him, with no compensation; if the lessor and lessee differ over the existing thing, whether it is defective or not, the matter returns to people of experience, such as an animal with a rough gait, or one that tires its rider because it is not ridden much: if they say it is a defect, he has rescission; otherwise, no rescission, and two of them suffice. All of this, that is, the mentioned rescission, applies when the contract fell upon the object itself; if the leased thing is described liability-based, the contract does not dissolve through its return, because it is defective and the lessor must replace it with a sound one, like the delivered thing: the contract's absolute terms only cover the sound one. If the lessor cannot replace it, or refuses to, and cannot be compelled, the lessee also has rescission, to recover what he missed.

It is known, from what preceded, that a valid lease is not rescinded by the lessor, nor by anyone else, for an increase that occurred, even if the object is a waqf, as shaykh Taqi ad-Din said, by the consensus of the imams. If the lessee bound himself to this increase in the described manner, he is not bound by it, by consensus; if he bound himself to it willingly, on the basis that increases and stipulations of binding contracts are not attached to it, that is mentioned in al-Ikhtiyarat.

If the lessee rescinds it without a defect or any other option, and stops benefiting from the leased thing before the term is completed, the lease does not dissolve: the rent is owed to him and the ownership of the benefits does not leave him; rather they are lost from his ownership, as mentioned before, since it is a binding contract and the lessor's disposition in the leased object is not allowed, whether the lessee stops using it or not: it has become owned by another, just as the seller cannot dispose of the sold thing unless there appears from the two of them what indicates restitution. If the lessor disposes of the leased object while it is in the lessee's hands (living in the house, or renting it to another after delivering it to the lessee), the lease does not dissolve by that, as mentioned, and the entire rent is owed by the lessee, since his hand has not left the object; and the lessee has against the owner the rent of the like for what he occupied or disposed of, because he disposed of what the lessee owned against him without his permission, his act resembling disposition in the sold thing after the buyer's taking possession, the object's taking here standing in place of taking the benefits. If the owner disposes of the leased object before its delivery, or refuses to deliver it until the term ends, the lease dissolves by that: the contractor having destroyed the object of the contract before delivering it, resembling the destruction of food before its taking. If the lessor delivers the leased object to the lessee during the term, the lease dissolves for what has elapsed of the lease term, and the rent of the remainder becomes due proportionally, that is, by the share of the named amount.

If the owner transfers the lessee before the completion of the rented term, or prevents him for part of the term, or the hired man refuses to complete the work or deliver during part of the term or distance, neither the lessor nor the hired man has any rent for what the hired man did, or what the lessee occupied, before the lessor's express transfer: neither of them delivered to the lessee what the lease contract fell upon, so he earned nothing, like one hired to carry a book to a specific town who only carried it part of the way, or hired to dig twenty cubits who dug ten and refused to dig the remainder.

If the hired man flees before completing the work, the lease does not dissolve; if the hired animal strays, the lease does not dissolve; if the lessor takes it and flees with it, the lease does not dissolve; if the lessor prevents the lessee from obtaining the benefit without flight, the lease does not dissolve by that, because of its binding nature, but the option of rescission is established for the lessee to recover what he missed: if he rescinds, there is no objection; if he does not rescind, and the lease is for a term, the lease dissolves day by day as the days pass, the object of the contract being lost: if the leased object returns during the term, the lessee obtains the remainder of the term, the lease remaining in effect for him; if the whole term elapses before its return, the lease dissolves, the object of the contract having been lost. If the lease is for liability-based work, such as being hired to sew a garment, or build a wall, or carry a thing to a specific place, and the hired man flees before completing the work, one is hired from his money (the judge hires from the hired man's money) someone who will do it, as if a thing was handed to him and he fled before returning it: the judge having authority over the absent and the resistant, he stands in their place for what is owed by them, from their property; if that fails because there is no property, the lessee has rescission, or patience until he is able to pursue him for the work, since what is in his liability does not fall away through his flight; if the lessee does not rescind and is patient until he finds the hired man, he demands the work from him whenever possible, since it remains in his liability.

Every place where the hired man refuses to complete the work earns him no rent for what he did; every place where the lessor prevents the lessee from benefiting from the leased object, after partial work, earns him nothing, as mentioned before, since he did not deliver to him what the lease contract covered, so he earned nothing; unless the lessor returns the object to the lessee before the term ends: he then has the rent, having delivered the object, but the rent of the period he withheld is deducted from it, the lease having dissolved in it, as mentioned; unless the hired man completes the work, when the contract was not for a term before the lessee's rescission: he then has the wage for what he did, having fulfilled the work. As for the animal straying, or obtaining the benefit becoming impossible without the lessor's act, the lessor has rent to the extent the lessee obtained, in any case, whether the object returned during the term or not: the lessor having an excuse in that. If the camel-man flees with his animals on part of the road, or before entering it, the judge has it hired from his property until he returns, and sells what he owns, if he has property: the judge having authority over the absent one; if that fails (no judge, or proof cannot be established, or nothing to hire, or nothing to hire with), the lessee has rescission; likewise if the animals were specified in the contract, the lessee rescinds, taking the object of the contract having become impossible for him and their replacement not allowed, since the contract fell upon their objects; and the camel-man has no rent at all for what preceded his flight, since he did not fulfill the object of the contract. If he rescinded and the camel-man had received the rent, it is a debt in his liability; if he chose to stay, and the lease is for liability-based work, he has it and demands it whenever he can; if the lease was for a term and the term elapsed during his flight, the lease dissolves.

If the contract fell upon a non-specified type, the contract does not dissolve: the matter is raised to the judge, who hires with his money, as mentioned, otherwise he borrows on his account what to hire with; if he hands it to him so that he hires for himself, it is allowed; the lessee's loan being allowed, it becomes a debt in the camel-man's liability. If the camel-man flees or dies, leaving his animals and having property, the judge provides their fodder from his property, or by selling what exceeds what the contract fell upon, since their fodder and watering are upon their owner, who is absent, and the judge is his deputy; and the judge hires, from the camel-man's money, someone to stand in his place in loading them, guarding them, and doing what he is obliged to do; if he cannot, because no property is found, the judge borrows on his account what he will spend on them, because it is a place of need, or authorizes the lessee to spend on the animals, because establishing a custodian other than the lessee is difficult, and supervising him at all times impossible. When the lease ends, the judge sells them (the animals) and repays the spender, whether the lessee or another, what he spent: this releases the camel-man's liability, fulfills the spender's right, and preserves the remainder of their price for their owner, since the judge must preserve the absent man's wealth. Whoever spent without asking the judge's authorization, from the lessee or another, intending to recover, recovers from its owner what he spent, because he performed an obligation that was not gratuitous; if he had no intention of recovering, there is no recovery: it is a gift; witnessing his intention to recover is not considered, nor is the impossibility of asking the judge's authorization.

If the animals' owner returns and they differ over what was spent: if the judge fixed the expense before the lessee's word about spending what the judge fixed, he is trusted for what he fixed, and beyond that his word is not accepted; if the judge did not fix an expense before the lessee's word about the amount of the expense, it is customary (ma'ruf), because he is trusted.