Islamic Fiqh > Companies and leases > Ijara (leasing) > The destruction of the object of the lease contract
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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.
Second: the lease dissolves through the destruction of the object of the contract, such as a slave who dies or a house that collapses: the benefit having vanished through the destruction of the object of the contract, it dissolves, whether before or after taking possession, and no rent is owed. If the object perished during the term (a rented house collapsing, land rented for cultivation whose water was cut off or which was drowned), the lease dissolves for the remainder of the term, the purpose of the contract having been lost, as if it had perished. If the destruction occurred after a period for which rent is due had elapsed, it dissolves for what remains, and the proportional share is owed for the past.
Third: the lease dissolves through the death of the nursed child or his refusal to nurse from the wet nurse: obtaining the object of the contract having become impossible, since no one else stands in his place in nursing, the two nurslings differing in this, and milk possibly flowing for one and not the other. If his death followed the contract, the lease falls away from its root and the lessee recovers the whole wage; if it occurred after a period had elapsed, he recovers the share of the remainder. Fourth: the lease also dissolves through the death of the wet nurse, the benefit having vanished through the loss of its locus. Fifth: the lease also dissolves through the extraction of the molar one hired to have pulled, or its healing: obtaining the object of the contract having become impossible, like death and the like, such as hiring a physician to treat a patient who recovers or dies: the lease dissolves for the remainder; if the patient refuses the treatment while the illness remains, the physician earns the rent at the end of the term; if he stipulated recovery, it is a ju'ala, and he earns nothing of the rent until recovery occurs.
The lease is not valid if one rents land without water, when the lessee thought obtaining water possible, or did not know it lacked water: he may have entered the contract counting on the lessor obtaining water, and renting it for cultivation despite its impossibility. If he knew there was water from rain and the like, or thought so, or counted on the Nile's flood and the like, the contract is valid: its existence being customary and apparently present. Once he has sown and the crop perishes through drowning, fire, locusts, mice, hail or the like before its harvest, or it did not sprout: no option, and the named rent is owed to him expressly, Ibn Qudama saying it is without any disagreement we know of (al-Mughni 5/282): what perished is not the object of the contract, and its cause is not guaranteed by the lessor. Then, if the lessee can benefit from the land without the crop, or with the crop during the remainder of the term, he benefits from it: he owns the benefit until the end of his term; if cultivating the rented land becomes impossible (the land drowned, the water scarce before or after sowing, or a blight spoiling part of the crop), he has the option, the diminution of the leased object's benefit having occurred. If he chooses rescission, having sown the remainder of the crop in the land until harvest, the share of the named amount is owed to the time of rescission, and the rent of the like for the remainder of the term, for land characterized by the defect that grounds the rescission.
Land drowned with water such that its cultivation is impossible before the water recedes, the water sometimes receding and sometimes not, therefore does not support a valid lease contract: present enjoyment being impossible through the presence of an obstacle, and the outcome not apparent, since the water does not recede in most cases.
The lease does not dissolve through the death of the lessor and lessee together, or one of them: it is a binding contract that does not dissolve through the contractor's death while the object of the contract is sound, unless the waqf's beneficiary dies after having leased it and the endower did not appoint an overseer. Nor does it dissolve for an excuse of one of them, such as renting for pilgrimage and losing one's expenses, or renting a shop to sell one's goods in and one's goods burning: it is a contract whose rescission without an excuse is not allowed, and therefore not for an excuse outside the object of the contract either, like sale.
If the rented object is usurped: if the lease fell upon a thing described liability-based (an animal with such and such traits, delivered and then usurped), the lessor must replace it, the contract having fallen upon what is in liability, not upon the object; if replacing it becomes impossible for the lessor, the lessee has rescission, or patience until he can demand the object or its replacement, and the lease dissolves at the end of the term if it is term-based. Likewise if the thing described liability-based is destroyed or becomes defective: the lessor must replace it; failing that, the lessee rescinds, as if delivering the sold thing became impossible. If the lease fell upon a specific object for a work ("I hire you this animal to ride to such a place"), the lessee chooses between rescission and patience until he can use it, the right belonging to him in that; if he delayed it to him, it is allowed. If the lease fell upon a specific object for a known term ("I hire you this slave for a month of service") and it is then usurped, the lessee chooses between rescinding the contract, delivering the object of the contract having become impossible, and keeping the contract without rescission while demanding from the usurper the rent of the like; the contract does not dissolve through mere usurpation, the object of the contract never being lost, but replaced by its value, resembling the destruction of the sold thing by a human being. The option being established for him, he has rescission, even after delay, and even after the term has expired: it is rescission to recover an injustice, like rescission for a defect in the sold thing. If he rescinds, he owes the rent of what elapsed before the rescission of the named amount, it having settled upon him; if the usurped object is returned during the lease before rescission, the lessee obtains the remainder of his term, and he chooses regarding the past while the object is in the usurper's hands. If the usurper is the lessor himself, he has no rent at all: whether the lease is for work or for a term, upon a specific or described object, whether his usurpation preceded the term or interrupted it: his case is not that of the third-party usurper, the lessee's hand not being upon the object, as mentioned before.
If the lessee destroys the leased object: what preceded is established (the right of rescission) if the lease fell upon a thing described liability-based; and replacement or automatic dissolution becomes impossible if it fell upon a specific object, delivery of the object of the contract having become impossible, the lessee guaranteeing in addition what he destroyed of the object.
If a general fear occurs that prevents dwelling in the place where the rented thing is, or the town is besieged, preventing the lessee from going out to the land he rented to cultivate, he has rescission: it is an overriding event that prevented the lessee from obtaining the benefit, establishing thereby the option, like usurpation. If the fear is specific to the lessee, like one who fears alone his enemies' proximity to the rented place, or their presence on his route, or sickness, or imprisonment, even if unjustly: he has no right of rescission, since it is an excuse specific to him that does not prevent obtaining the benefit altogether, since he may appoint someone to stand in his place. If one hired an animal to ride to a specific place, or to carry a load to a specific place, and the road to that specific place was cut off by an arising fear, or one hired to Mecca and the people did not go on pilgrimage that year by that route: each of the two, lessor and lessee, has the right to rescind the lease, as mentioned before; if they both choose keeping the lease until the time when obtaining the benefit becomes possible again, it is allowed: the right does not exceed them.
Whoever is hired to perform liability-based work, without personal performance being stipulated, and then falls sick: he must establish in his place someone who will perform it, to exit the exigible right in his liability, like the delivered thing; and the rent is owed by him, in exchange for what is owed by him; the lessee is not obliged to grant him delay, the contract's absolute terms requiring haste, except in what varies with intent, like copying, which varies with the lines; and the lessee is not obliged to accept another's work, the purpose not being achieved through him. If the hired man's work becomes impossible, the lessee has rescission, unable to reach his right; if the lessee stipulated from the hired man his personal performance, no substitution is then valid, the stipulation being present. If the hired man dies during the lease term, the lease becomes void for the remainder: the object of the contract having been lost through the loss of its locus, whether the lease was over his object for a term or otherwise, like hiring a specified slave or a specified person to sew for a month, or to build this wall, and the hired man fell sick: no one stands in his place, the contract having fallen upon his object, like the specified sold thing.
If the lessee finds the leased object defective, or a defect occurs to it by which the variation of the rent appears, he has rescission: benefits are only taken little by little, so when the defect occurs, it appeared before taking the remainder of the object of the contract, grounding rescission for what remains of it. Or if he rented a house whose neighbor is a bad man, or a woman likewise, whom the lessee did not know of: he has rescission by that, like sale, as long as the defect does not quickly disappear without harm reaching the lessee. If the cesspit becomes blocked and the lessee wants to return it, while the lessor says "I will open it", for a brief time in which no benefit harmful to the lessee is lost: he has no option. When the lessee rescinds the lease for the defect, he owes the rent of what elapsed before the rescission, it having settled upon him; and the lessee may also confirm without compensation for the defect, having accepted it diminished; one view grants him the compensation, like sale; Ibn Nasrallah said: "We grew tired seeking a difference between the two and found none." If the lessee does not learn of the defect until the term ends, the whole rent binds him, with no compensation for the defect, as if he had known and chosen confirmation.
The sale of the leased object is valid: whether it was hired for a term not following the contract and sold before entering into enjoyment, or sold during the term: the lease being a contract over benefits, it does not prevent the validity of the sale, like one who marries off his slave woman and then sells her. Its pledge (rahn) is also valid, since its sale is valid; and the buyer who did not know it was leased has the option between rescission and confirming it free of charge; in the pasture (ri'aya), rescission or compensation; Ahmad said: it is a defect. The lease does not dissolve through its lessee's purchase of the leased object: he was the owner of the benefit, then became owner of the body, with no contradiction between the two. Nor does the lease dissolve through the leased object's transfer to the lessee by inheritance, gift, bequest, dowry, khul' compensation or settlement, such as ju'ala, divorce or manumission: ownership of the body and of the benefit not conflicting, so the seller of the leased object to the buyer combines the price and the rent: the sale contract did not include the benefits running within his ownership through the lease contract, since no one can buy ownership of his own person.
If the lessee buys the leased object and then returns it for a defect, the lease remains in its state: they are two contracts, the rescission of one leaving the other standing. If the buyer of the leased object is a stranger, the rent becomes his from the moment of sale, according to Ja'far ibn Muhammad's narration; al-Buhuti said it was objected that the benefits of the lease term are not owned by the seller and therefore do not enter the sale contract, so the buyer should have their compensation, which is the rent. The answer to that: the owner holds their compensation, the rent, which has not yet settled; and if the contract dissolves, the benefits return to the seller: the buyer stands in the seller's place in what is owed to him of them, which is an entitlement of compensation for benefits while the lease remains, as said in Sharh al-Muntaha; and in al-Mughni, what requires the rent for the seller is clear, since he owned it through the contract. If the stranger lessee rescinds the lease for a defect or the like, the benefit of the remainder of the term returns to the seller, not the buyer: his contract did not include it, the seller not owning it. (Ref.: Kashshaf al-qina' 4/37.)
ar-Ruhaybani, may Allah have mercy on him, said: the question is directed as follows: the lease dissolves through a man of war (harbi) taking control of the Muslims' house, placing his hand on the leased thing and preventing benefit from it; and the reverse, when the Muslims take control of the house of war and place their hands on their leased things, the lessee not being able to dispose of what he rented from the man of war: the lease dissolves through that; unless the man of war had rented what is in his hand to a protected person, a Muslim or a dhimmi: the lease does not dissolve, his hand upon the leased thing remaining permanent because it is respected, and the transfer of ownership of the leased thing not requiring the lease's nullity, as mentioned before. This is the directed view. (Refs.: Matalib uli an-nuha 3/655, 666; al-Mughni 5/260, 265; ash-Sharh al-kabir 6/99, 104; Sharh az-Zarkashi 2/180, 183; al-Insaf 6/58, 66; Kashshaf al-qina' 4/27, 38; Sharh muntaha al-iradat 4/51, 63; ar-Rawd al-murbi' 2/98, 101; Manar as-sabil 2/223, 226.)
If the lease is complete in its pillars and stipulations and is valid, it binds through the contract alone, by consensus, as mentioned before. If the owner prevents the lessee from completing the lease term (a house rented for a year, half of which he occupied, and then the owner prevents him from completing the term), or prevents him from performing the work (like one who hired a man to build a wall and then prevented him from completing it), or the hired man does not complete the work, the jurists differ over the rent for the elapsed residence or work: does the owner earn it if he is prevented from completing the residence or the work? Does the hired man earn the wage of what he did before abandoning, like one hired to build a wall who built half of it and then abandoned without completing it?
The Hanbalis say: if something was hired to someone and the lessor prevents the lessee from the hired thing for the whole term or part of it, by transferring it to him before the term ends, he has nothing of the rent: he did not deliver to him what the lease contract fell upon, so he earned nothing; if it is the lessee who decides to move before the lease term ends, the entire rent is owed by him: the contract being binding, its consequences follow, the lessor being owner of the rent and the lessee owner of the benefits. It is related in al-Mughni by Ibn Qudama, may Allah have mercy on him: if the owner transfers him before the term is completed, he has no wage for the residence. Meaning: if one rents property for a term, occupies part of the term, and then the owner evicts him, preventing completion of the residence: he has nothing of the rent. It is also understood that he has the wage proportionally, which is the view of most jurists: he has the wage for what he occupied, having acquired another's property through exchange, so he owes its compensation like sale, having obtained part and then the owner preventing him, as if obtaining the remainder became impossible through an overriding event. Our view: he did not deliver to him what the lease contract fell upon, so he earns nothing, like one hired to carry a book who carried it part of the way, or hired to dig twenty cubits who dug ten and refused to dig the remainder: the lease's analogy to a lease is stronger than its analogy to sale, and this differs from the overriding event, which is an excuse.
The same ruling applies to one who rented an animal whose lessor refuses delivery during part of the term, or who hired out his person or his slave for service for a term and refused to complete it, or who hired out his person to build a wall, sew, dig a well or carry a thing to a place and refused to complete the work: the ruling is that of the property whose delivery is refused, and he earns nothing, as we mentioned.
Chapter: if the hired man flees, or the animal strays, or the lessor takes the object and flees with it, or prevents him from obtaining the benefit without flight, the lease does not dissolve, but the option of rescission is established for the lessee: if he rescinds, there is no objection; if he does not rescind, the lease dissolves day by day as the days pass: if the object returns during the term, he obtains what remains of it, the lease remaining in effect for him; if the term elapses, the lease dissolves, the object of the contract having been lost. If the lease was for described liability-based work (sewing a garment, building a wall, carrying to a specific place), one is hired from his money (the judge hires from the hired man's money) someone to do it, as if a thing was handed to him and he fled: it is bought from his property; if that is not established, the lessee has rescission: if he rescinds, there is no objection; if he does not rescind and is patient until he can pursue him, he demands the work from him, since what is in liability does not fall away through flight. Every place where the hired man refuses to perform the work, or where the lessor prevents the lessee from benefiting after partial work, earns him nothing, as mentioned before, unless the object is returned before the term ends, or the work is completed 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, he has rent to the extent of what was obtained, in any case.
Issue: if an overriding event occurs preventing the lessee from the benefit of what the contract fell upon, a wage to the extent of the duration of his benefit is owed to him. The summary is that whoever rents an object for a term and is prevented from benefiting from it falls into three cases. The first: the object perishes, like an animal that dies or a slave who dies, in three forms. The first: it perishes before taking possession: the lease dissolves, without any disagreement we know of, the object of the contract having perished before its taking, resembling the sold food perishing before its taking. The second: it perishes right after taking possession: the lease dissolves too, and the wage falls away according to most jurists, except Abu Thawr, to whom is related the saying that the wage settles, because the object of the contract was destroyed after his taking, resembling sale: this is an error, the object of the contract being benefits, whose taking consists in extracting them or being able to extract them, which did not occur, so it resembles its destruction before taking the object. The third: it perishes after part of the term has elapsed: the lease dissolves for what remains of the term, not for what elapsed, and the lessor has a wage to the extent of the benefit obtained. Ahmad said, according to Ibrahim ibn al-Harith's narration: if one hired a specific camel and it perished, he is paid to the extent of what he rode, for the reason we mentioned: the object of the contract being benefits, part of which perished before his taking, the contract having fallen away for the destroyed part without prejudice to what was taken, like one who bought two sacks, took one, and the other perished before its taking. Then we consider: if the term's rent is equal, he pays to the extent of what elapsed (half elapsed: half the wage; a third: a third), as the price is divided over the equal sold thing; if it differs (a house more expensive in winter than summer, land more expensive in summer than winter, or a house with a season, like the houses of Mecca), its appraisal returns to people of experience, and the named wage falls away according to the value of the benefit, like dividing the price over differing objects in sale; likewise if the wage was over covering a distance (a camel hired to carry things to a specific place, with equal or unequal stages): this is the apparent school of ash-Shafi'i. (Refs.: al-Mughni 5/261, 264; ash-Sharh al-kabir 6/101, 103; al-Mubdi' 5/99, 101; Kashshaf al-qina' 4/30; Sharh muntaha al-iradat 4/52; ar-Rawd al-murbi' 2/98-99; Matalib uli an-nuha 3/656.)
If there is an obstacle to completing the work from the hired man's side, he earns a wage proportionally to what he did. al-Buhuti, may Allah have mercy on him, said: if the hired man, while digging, reaches rock or stone that prevents digging, he is not obliged to dig: that rock or the like differs from the earth he had seen, so as soon as what contradicts the inspection appears in it, the hired man has the option between rescission and confirmation, like the option of defect in sale. If he rescinds, he earns a wage proportionally to what he did, the obstacle to completion not being from him: the named wage is divided over what remains of the work and over the hired man's work, asking how much the wage of what was done is, and how much that of what remains, the named wage falling away: if we suppose the wage of what was done to be ten, and of what remains fifteen, he takes two-fifths. It is not allowed to divide the wage over the number of cubits, since at the top of the well the earth is moved easily from it, and at the bottom with difficulty: this is what is decided in al-Mughni and al-Mubdi' and others, contrary to what is mentioned at the beginning of the chapter, following the ri'aya. If water gushes from what was dug (the well or the river) preventing the hired man from digging, it is like the rock: he has rescission, and the named amount is divided over what was done and what remains, and he takes the proportional share. (Refs.: Kashshaf al-qina' 4/10; Matalib uli an-nuha 3/631.)
The lease ends through several matters mentioned by the jurists, in the following detail and exposition. First: the end of the lease term. There is no disagreement among the scholars of the umma: when the lease is delimited by a term, it ends with it, except for an excuse: what is fixed to a limit ends at the limit's existence, so the lease dissolves at the end of the term, unless there is an excuse, such as the term elapsing while a crop in the land has not been harvested: the scholars detail this.
The Hanafis and Malikis hold that if the lease term elapses while an unharvested crop is in the land, it may not be uprooted: it is left until its harvest, against the rent of the like, unlike trees, whose uprooting may be ordered; and a tree bearing fruit whose dates have ripened is like the crop. The Hanafis say: if the lease term elapses with an unharvested crop in the land, it is left until its harvest against the rent of the like, unlike moisture or a sapling, whose uprooting is ordered: leaving the crop until it reaches maturity takes both rights into account, with consideration from both sides, since its cutting has a known end; moisture, on the other hand, has no known end, and if it were not cut, the land would remain unproductive to the detriment of its owner. This differs from the usurper who sowed the usurped land: he is ordered to uproot, and he is not left until harvest time against rent: leaving in a lease is a respite granted to ward off harm from the lessee, who deserves the respite, having sown with the owner's permission; the usurper, on the other hand, is an unjust transgressor in his sowing, with no right to the respite of leaving, since he harmed himself by sowing others' lands unjustly. (Refs.: Bada'i' as-sana'i' 4/223; Tabyin al-haqa'iq 5/114.)
The Malikis say: if the lease term elapses while an unharvested crop is in the land and it has not ripened, the land's owner may not uproot it: rather he has the rent of his land until the purpose of the crop is completed, from the day his rent term ended until his crop is harvested. This differs from trees: if one rented land to plant in and the lease term expires, its owner chooses between ordering the lessee to uproot, with nothing of the uprooting wage against him, paying him the value of the uprooted saplings, or leaving them in the land and the two becoming partners: because the lease requires delivering the land, after the term ends, free of any right of the lessee over it, and what he occupied it with is little; its root is that if he has forage or food in it, he is ordered to uproot; and because the benefit of limiting the contract to the term is the appraisal of the benefit obtained and its cessation afterwards, and keeping the saplings after the term is a nullification of the benefit of the delimitation and appraisal, contrary to the contract's cause. The tree bearing ripe fruit is like the crop. (Refs.: al-Kafi 1/378; al-Ma'una 2/111; ash-Sharh al-kabir with ad-Dasuqi 5/406; at-Taj wa-l-iklil 4/522; Sharh mukhtasar Khalil 7/47; Tahrir al-mukhtasar 4/598.)
As for the Shafi'is, they have a detail. ash-Shafi'i said: if one rents land for a year, sows it, and the year elapses with a crop in it that has not reached harvest: if the year would have allowed sowing a crop harvestable before it, the rent is valid, and the crop's owner may not keep it: he must remove it from the land, unless the land's owner wishes to leave it. If it was stipulated that he sow a type of crop harvestable, or thinning-able, before the year, and the sower delayed until a time of the year which elapses before the crop ripens, it is likewise; if one rented for a term less than a year, stipulating sowing a specific thing in it and leaving it until it is harvested, while he knew he could not harvest it in a term like the one he rented: the rent is corrupt in it, for if I establish between them their stipulation without obliging the land's owner to leave his crop in it after the term ends, I nullify the sower's stipulation to leave it until harvested; and if I establish his crop for him until harvested, I nullify the land owner's stipulation: this rent is therefore corrupt, and the land owner has the rent of the like of his land if he sowed it, and the sower must leave it until harvested.
al-Mawardi, may Allah have mercy on him, said: the form of this issue is that a man rents land for a known term to sow a described crop in it, sows it, then the term elapses before his crop's harvest. The term's state falls into three cases: one, that he knows that crop is harvestable in a like term; two, that he knows it is not; three, that doubt falls into it. As for the first case (knowing by custom that such a crop is harvestable in such a term, then the term elapsing before its harvest), it itself falls into three cases. The first: that the delay of its harvest is due to his deviation from the type he stipulated, like renting five months to sow beans, and he sows wheat, so the term elapses without the crop being harvestable: he is taken to the uprooting of his crop before its harvest, because by deviating from beans to wheat he has become a transgressor, without right to the benefit of the crop he transgressed in; if the lessor and lessee agree to leave it until its harvest time against the rent of the like for the excess of the term, it is accepted; if the lessee consents and the lessor refuses, or vice versa, to pay the rent of the like, it is uprooted. The second: that the delay of its harvest is due to the delay of its sowing, without deviation from its type: he is negligent, and he is taken to the uprooting of his crop before its harvest, since his negligence binds no one; if he pays the rent of the like of the excess term and the lessor consents to accept it, it is left, otherwise uprooted. The third: that the delay of its harvest is due to a celestial cause, like persistent cold, delayed rain or lasting snow: two views. One: it is left until its harvest time, the lessee having committed neither aggression nor negligence; if it is left until harvest time, the lessee guarantees the rent of the like of the excess term beyond his contract. The second: he is taken to the uprooting of his crop, and it is not left, since he could have secured an extension for himself fearing a celestial event, and did not, becoming negligent.
As for the second case of the root (knowing by custom that such a crop is not harvestable in such a term, like renting it four months for wheat or barley), it falls into three cases. One: that its uprooting at the term's end was stipulated: this is a valid lease, since he may want the crop as cut fodder, not as grain; when the term elapses, he takes to the uprooting and cutting of his crop. Two: that leaving it until its harvest time was stipulated: this is a corrupt lease, since stipulating obtaining the crop after the lease term contradicts its cause, so it becomes void; the farmer then obtains his crop until its harvest time, even if the lease is void, without being taken to uprooting his crop: he sowed it with a permission in which leaving was stipulated, and he owes the rent of the like. The difference between this issue (obtaining the crop despite the lease's corruption) and the preceding cases (uprooting despite the lease's validity) is that when the lease is void, the permission is considered, not the term, and when it is valid, the term is considered. The third of these cases: that the contract be absolute, stipulating neither uprooting nor leaving: our companions differ over whether its absolute terms require uprooting or leaving, in two ways. One, which is Abu Ishaq al-Marwazi's view: it requires uprooting, in regard to the contract's cause: on this the lease is valid, and the lessee takes to the uprooting of his crop at the term's end. The other path, which is the apparent meaning of ash-Shafi'i's words, may Allah have mercy on him: the absolute requires leaving until harvest time, in regard to the custom, just as the absolute terms of selling fruit whose soundness has not appeared require leaving until the time of hardening, in regard to the custom: the lease is then corrupt, the lessee has the leaving of his crop until its harvest time, and he owes the rent of the like, as if he had stipulated the leaving. As for the third case of the root (doubt falling into that term as to whether the crop is harvestable in it, like renting the land five months for wheat or barley, the crop possibly being harvestable in this term in some lands and some years, and possibly not), the ruling of this case follows the ruling of the crop known to be harvestable, and follows the ruling of the crop known not to be harvestable, as mentioned before: removing the doubt and considering the certain. (Refs.: al-Hawi al-kabir 7/457, 459; Mukhtasar al-Muzani 128-129.)
As for the Hanbalis, Ibn Qudama, may Allah have mercy on him, said: if one rented land for cultivation for a term that elapses with a crop that has not reached harvest, there are two states. One: that it be through the lessee's negligence, like sowing a crop whose custom does not accept completion before the term ends: its ruling is that of the usurper's crop, the owner choosing after the term between taking its value or leaving it against the rent of the term's excess, since he kept his crop in another's land through aggression; if the lessee chooses cutting his crop at once and emptying the land, he has that: it removes harm and delivers the land according to what the contract required. al-Qadi mentioned that the lessee must transfer the crop and empty the land, and their agreement to leave it, with or without compensation, is allowed: this is ash-Shafi'i's school, based on his view about the usurper; our school's analogy is what we mentioned. The other state: that its remaining be without negligence, like sowing a crop that ends within the term by custom, but which was slowed by cold or the like: the lessor must leave it until it ends, and the lessee owes the named amount and the rent of the like of the excess: this is one of the two views of ash-Shafi'i's companions. The other view: he must transfer it, since the term was set for the crop's transfer: acting upon its cause is therefore required, and negligence has occurred in it, since he could have secured an extension within the term and did not. Our view: the crop occurred in another's land with his permission, without negligence: it must therefore be left, like one who lent land for planting and whose owner returns before the crop's completion; their view that he is negligent is incorrect: this term is the one in which custom accepts the crop's completion, and extending the term would forfeit an increase of rent without benefit, and waste a certain gain for realizing an imagined thing against custom: that is negligence, not leaving.
When the lessee wants to sow a thing whose like does not arrive within the lease, the owner has the right to prevent him: it is a cause of his crop's presence in his land without right, so he owns preventing him from it; if he sowed, he cannot demand of him the uprooting before the term, since he is in a land whose benefit he owns, nor after the term: what precedes it is stronger; and whoever requires cutting after the term said: if demanding transfer is unavoidable, it occurs at the term at which delivering it empty to the lessor is owed. If land was rented for a crop for a term in which it does not complete (five months for a crop that only completes in a year), we consider: if emptying it at the term's end was stipulated, and transferring it from it, it is valid: it does not lead beyond his term, and he may have a purpose in it (taking it cut, or otherwise); what he contracted binds him. If he left the contract absolute without stipulating anything, it is perhaps valid: benefiting from the crop in this term being possible; and perhaps invalid if he cannot benefit from the land in a crop whose harm equals the stipulated crop's harm or less, like sowing barley in it which he takes as cut fodder: the contract is valid, benefiting from the land in part of what the contract required being possible; if it is not thus, it is not valid: he would have rented for a crop he does not benefit from, resembling renting the salt flat to him. If we say valid, and the term elapses, two views. One: its ruling is that of the lessee's crop that does not complete in its term, since he is negligent here, having rented a term for a crop that does not complete in it, and it is possible the lessor is obliged to leave it against rent: the negligence being his, since he rented a term for a crop that does not complete in it. And if he stipulated its remaining until its completion, the contract is corrupt: it combines two contraries, the term's appraisal requiring transfer within it, and the stipulation of remaining contradicting it; and the duration of remaining being unknown: then if he sowed, he is not demanded to transfer, as mentioned before.
Chapter: if the land was rented for planting for a year, it is valid: delivering its licit, intended benefit being possible, it resembles the other benefits; whether uprooting the plants at the term's end was stipulated or the contract left absolute, it is the same; and he may plant before the term ends, but once it expires he may not plant: his contract having ceased. If the year elapses and he stipulated the uprooting at its end, it binds him, in fulfillment of what he stipulated, with no penalty of diminution for the land owner, and no obligation for the lessee to level the holes and repair the land: they both entered upon this basis, consenting to the uprooting and stipulating it upon him. Their agreement to keep it for a rent or without it is allowed, if a known term was stipulated; likewise renting the land year after year, each time a contract ends another being renewed: it is allowed. If the contract is absolute, the lessee has the uprooting: the planting being his property, he takes it, like his food from the house he sold; and after uprooting, leveling the holes is owed by him: it is a diminution that entered another's ownership without his permission; likewise if he uproots it before the term ends: the owner not having permitted it, and it being a disposition in the land that diminishes it, not required by the lease contract. If he refuses the uprooting, he is not compelled, unless the owner guarantees him his plants' diminution: he is then compelled, as ash-Shafi'i said. Abu Hanifa and Malik hold that he owes the uprooting without guaranteeing the diminution for him: the term's appraisal in the lease requiring emptying at its end, as if he rented it for cultivation. Our view: the Prophet's words, peace be upon him:
"There is no right for an unjust root"Reported by Abu Dawud (3073), at-Tirmidhi (1378), an-Nasa'i in as-Sunan al-kubra (5761), ad-Daruqutni (1378) and al-Bayhaqi in as-Sunan al-kubra (6/142)
mean, by its form, that what is not unjust has a right; and he is not unjust, having planted with the owner's permission without the uprooting being stipulated: he is therefore not compelled to uproot without guaranteeing the diminution, like one to whom land was lent for planting for a term and whose owner returns before its completion; it differs from the crop, which does not require the leaving. If it is objected that if the contract's absolute terms in planting require the leaving, then the stipulation of uprooting contradicts what the contract requires and should corrupt it: the absolute required the leaving only because the custom in planting is keeping: the absolute contract is therefore interpreted by the custom, and stipulating its opposite is allowed, like selling without the country's currency, or stipulating in the lease a stipulation against the custom.
This being established, the land's owner chooses between three things. One: paying the value of the planting and the building, becoming their owner along with his land. Two: uprooting the planting and the building, guaranteeing the compensation of the diminution. Three: keeping the planting and the building, taking from them the rent of the like: as ash-Shafi'i said. Malik, may Allah have mercy on him, said that he chooses between paying its value and becoming its owner, demanding the uprooting without guarantee, or leaving them and the two becoming partners: this is not valid, the planting being the planter's property, no compensation having been paid to him, nor did he consent to his ownership's disappearance, like other plants. If they agree to sell the planting and the building to the owner, it is allowed; if their owner sells them to someone other than the land's owner, it is allowed, and their buyer stands in the seller's place regarding them. ash-Shafi'i's companions, on one of the two views, say he may not sell them to anyone other than the land's owner, since the owner's property is weak, the proof being that the land's owner may appropriate it at its value without his permission. Our view: it is owned by him, its sale to the land's owner being allowed, and therefore to another, like the detached indivisible share whose co-owner may appropriate and buy: what they mentioned is therefore void. If keeping the plants was stipulated in the contract, al-Qadi mentioned that it is valid, with the ruling of the absolute contract, which is ash-Shafi'i's companions' view; it is possible the contract is void: what contradicts what the contract requires was stipulated, so it is not valid, like stipulating that for the crop that does not complete before the term ends; and the stipulation being invalid, its fulfillment is not required: it is a nullifier, like the stipulation of keeping the crop after the lease term. (Refs.: al-Mughni 5/282, 285; ash-Sharh al-kabir 6/144, 146.)
Second: mutual rescission. The jurists of the four schools agree on the validity of iqala in the lease: when the lessor releases the lessee, the lease ends. The Hanafis say the lease ends through iqala: it is an exchange of money for money, therefore subject to iqala, like sale. The following rulings branch from iqala in the lease, with the Hanafis:
(Ref.: Durar al-hukkam, Sharh majallat al-ahkam 1/418.)
The Malikis say: whoever rents an animal from a man may make iqala with him, before the rent is paid or after, without absence of either of them, whether it is something that can be absent or not, at the capital's value or more, the increase being in dinars, dirhams or commodities for cash: because he bought the riding that became owed to the lessee by the increase that became owed to him; and iqala is prevented because the benefits are a debt upon the lessee toward the lessor, so one does not dissolve a debt into a deferred debt. If he is absent after payment, iqala with increase is only valid from the lessee, if he deducts it from the rent: he will then have taken less than he paid, so the increase does not make a usurious loan suspected; it is not valid from him if he returns more than he took. Likewise if he traveled a small part of the distance: suspicion is established; if he covered a large part of it, there is no suspicion, and the increase is then allowed from either of them. In al-Bahja, the commentary on at-Tuhfa, it is said: as for when the rent has been paid without dwelling or riding, iqala is allowed: nothing binds upon them. (Refs.: al-Bahja, Sharh at-Tuhfa 2/248; see: ash-Sharh al-kabir with ad-Dasuqi 5/392-393; at-Taj wa-l-iklil 4/513; Sharh mukhtasar Khalil 7/27; Tahrir al-mukhtasar 4/588.)
Abu Ja'far at-Tahawi, may Allah have mercy on him, relates: iqala in the lease against an increase of the rent. Abu Ja'far said: iqala before taking possession is rescission with our companions, and after taking possession, with Abu Hanifa, it is likewise: it is only valid upon the first price; as for the lease, rescission is valid in it, but not a lease contract between him and the lessor. Ibn Sima'a relates from Muhammad: the lessee may not sublease what he rented from the lessor, neither before nor after taking possession: if it were allowed, each would have to deliver another's benefits and take them, at one time, from their owner, and it becomes void. Malik, may Allah have mercy on him, said: when he has paid him the rent, iqala against an increase over the capital is allowed as long as they do not part; if they part, the increase is allowed from the lessee, not from the lessor. (Ref.: Mukhtasar ikhtilaf al-ulama 4/118.)
ar-Ramli, the Shafi'i, was asked about iqala in the lease, whether it is allowed? He answered: yes, it is allowed with its condition. (Refs.: Fatawa ar-Ramli 1/328; Asna al-matalib 2/408.) The Hanbalis say that iqala is valid in the lease, as it is valid in sale; and the iqala of a waqf's lessor is valid if the entitlement is entirely his: he is like the owner regarding it; its apparent meaning is that it is not valid if the entitlement is shared, or belongs to a specific other, or if the waqf was for a purpose. al-Buhuti said that people act contrary to it; and in al-Furu', regarding pilgrimage, one who was hired on behalf of a deceased (to perform pilgrimage in his place): if we say the lease is valid, is iqala valid? The deceased's right is directed in two ways; it is said in Tas-hih al-furu': the sound view is permissibility: he stands in his place, so he is like the partner and the mudarib. Its analogy is the permissibility of iqala by the overseer and the orphan's guardian, for benefit. (Ref.: Kashshaf al-qina' 3/289-290.)