The loss of the leased object

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

The loss of the leased object

Third: the loss of the leased object. The jurists of the four schools, on the sound view among them all, as detailed before, hold that the lease is rescinded and ends through the destruction of what the benefit is extracted from, if that element is specific: a house, a shop, an animal, a ship; as for the non-specific animal, the lease does not dissolve.

The Hanafis say that the lease contract ends through the loss of the rented thing and of what it was rented for: despair of obtaining the object of the contract having set in after its loss, so that keeping the contract has no benefit, even if the lessee is a slave, a garment, jewelry, a vessel, or a specific animal that perished, or the garment rented for sewing or whitewashing that perished: the lease becomes void. If the lease fell upon animals without specifying their objects, and the lessor delivered them to him, they were taken and then died: the lease is not void, and the lessor must bring him others: what perished is what the contract did not fall upon, the animal, non-specified, making the contract fall upon benefits in liability, the object only being delivered so that the benefits stand in place of what is in his liability: if it perishes, what is in the liability remains as it is, and he must designate others. al-Maydani, may Allah have mercy on him, said in al-Lubab: if the benefit disappears totally (the house entirely ruined, the land's water entirely cut off, the water cut off entirely from the mill), the lease dissolves: the object of the contract having been lost before taking, resembling the loss of the sold thing before its taking, and the death of the hired slave. Some of our companions say the contract does not dissolve: the benefits having been lost in a manner that permits their return, resembling restitution in sale: this is in al-Hidaya, and the like in Sharh al-aqta'. Then he said: the sound view is the first, followed in al-Jawhara; but most of the shaykhs are on the second, which is sound, as in adh-Dhakhira, at-Tatarkhaniyya, al-Ikhtiyar and others; and in al-Ghaya, quoted from Ijarat shams al-a'imma: if the house is entirely demolished, the sound view is that it does not dissolve, but the wage falls away, whether rescinded or not. (Refs.: al-Lubab 1/496-497; Bada'i' as-sana'i' 4/223; al-Jawhara an-nayyira 3/375.)

The Malikis say that the lease is rescinded through the loss or impossibility of what the benefit is extracted from, if that element is specific (a house, a shop, a bathhouse, a ship and the like), impossibility being broader than loss: it includes disappearance, sickness, usurpation and the forced closing of shops, and other things, as will come. Once it is rescinded, one returns to reckoning in view of the benefit obtained and not obtained, and in view of the distance, long or short, easy or hard. It is not rescinded, however, through the loss or impossibility of what extracts the benefit: the resident, the rider, or what was carried. Every object from which the benefit is extracted carries the lease's dissolution by its loss (the death of the specified animal; the non-specified animal not carrying the dissolution by its death; the collapse of the specified house). (Refs.: ash-Sharh al-kabir with ad-Dasuqi 5/378; Mawahib al-jalil 7/431; at-Taj wa-l-iklil 4/503; Sharh mukhtasar Khalil 7/30; Tahrir al-mukhtasar 4/580; Sharh as-saghir with as-Sawi 9/47.)

The Shafi'is say that the lease dissolves through the total, perceptible loss of the benefit, among whose forms are the death of the animal and of the specified hired man: if it occurred before taking possession or right after it, before a period for which a like rent is due has elapsed, the contract dissolves; if it occurred during the term, the contract dissolves for the remainder, not the past, on the more apparent view: it having settled through taking possession. On the opposite view, it dissolves for the past too: the contract being one, it has already dissolved for the whole term. If we say it dissolves for the past, the named amount falls away and the rent of the like becomes due for what 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: the whole object of the contract having not been 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 it is allowed, the proportional share of what elapsed of the named amount is owed, with distribution over the value of the benefit, that is, the rent of the like, not over time itself, which varies: the rent of a 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 elapsed, and the rent of the like of it is, for example, equal to the rent of the like of the remaining half, two-thirds of the named amount are owed; if it is the reverse, a third. Once the option is established by a defect, and the contract is 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 it, the entire named rent is owed by him, as one who accepts the sold thing's defect 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 is what we mentioned, 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 sound view is the first: sale is over the object, which becomes possessed by its destroyer; the lease is over benefits, and the benefits of future time are nonexistent, destruction not being conceivable 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 through 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; as for the house becoming dilapidated without collapsing, it does not dissolve, but the option of delay is established. (Refs.: Rawdat at-talibin 4/66-67; 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 Hanbalis say that the lease is rescinded through the destruction of the object of the contract (an animal or slave that dies, a house that collapses), whether the lessee took possession or not: the benefit having vanished through the destruction of the object of the contract, its taking consisting in extracting it or being able to, which did not occur. Ibn Qudama, may Allah have mercy on him, said in al-Mughni: its summary is that whoever rents an object for a term and is prevented from benefiting from it falls into three cases. One of them: the object perishes, like an animal that dies or a slave who dies, in three forms. One of them: it perishes before its 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 its 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, 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 a thing to a specific place, with equal or unequal stages): this is the apparent school of ash-Shafi'i.

The second case: that there occur to the object what prevents its usefulness, like a house that collapsed, land that was drowned or whose water was cut off: this is considered; if no usefulness remains in it at all, it is like the destroyed thing, without difference; if usefulness other than what it was rented for remains (using the house's courtyard for placing wood in it, erecting a tent on the land rented for cultivation, fishing from the drowned land), the lease dissolves too: the benefit the contract fell upon having perished, the lease dissolved, like one who hired an animal to ride and it can only turn at the mill. al-Qadi, may Allah have mercy on him, said regarding the land whose water is cut off that the lease does not dissolve in it, which ash-Shafi'i states expressly: the benefit not having fallen away altogether, since the land's courtyard can be used by erecting a tent or gathering wood in it: it resembles the lessening of its usefulness while it remains, and the lessee then chooses between rescission and confirmation; if he rescinds, its ruling is that of the slave when he dies; if he chooses confirming the contract, the whole wage is owed by him: it is a defect, and his consent removes its ruling; if he chooses neither rescission nor confirmation, whether out of ignorance that he has rescission, or otherwise, rescission remains his afterwards; the first is sounder: the remaining of what is not the object of the contract not preventing the contract's dissolution through the object of the contract's destruction, as in sale. If the remaining usefulness in the objects is of those whose extraction is not permitted by the contract (an animal rented for riding becoming fit only for carrying, or the reverse), the contract dissolves by one view: the remaining benefit not being able to be obtained with the animal sound, so neither with its defect, like its sale. As for the case where benefiting from the object is possible in what it was rented for, in a deficient form (cultivating the land without water; the water receding from the drowned land in a manner preventing part of the cultivation or spoiling the crop; dwelling in the house's courtyard, in a tent or otherwise), the lease does not dissolve: the contracted benefit not having vanished altogether, resembling the case of its tiring; and the lessee has the option of rescission, as we mentioned. Except the collapsed house: two views. One: the lease does not dissolve. The other: it dissolves: its name having vanished through its demolition, and the benefit sought from it having vanished, no one renting a house's courtyard to dwell in. As for the case where the event occurring in the object is not harmful (land drowned by water that recedes soon, not preventing the crop nor harming it; the water's cut-off while the lessor brings it from another place; or the cut-off at a time of no need): the lessee has no rescission, it not being a defect; if harmful drowning occurs, or the water's cut-off, or part of the rented thing collapses, that part follows the ruling of rescission or the option's establishment; and the lessee has the option of keeping the object, taking the share of the rent, as when one of the two sacks of food perishes in the seller's hands. (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 3/659.)

The death of one of the contracting parties: lessor or lessee

Fourth: the death of one of the two contractors, the lessor or the lessee. The jurists differ: if the lessor and the lessee die, or one of them dies during the lease contract, does the lease dissolve, or does it remain in its state, the deceased's heir standing in his testator's place?

The Hanafis hold that if one of the two contractors, lessor or lessee, dies having contracted the lease for himself, it dissolves: had the contract remained, the benefit owned by the contract, or the rent owned, would have become owed by the contract and transferred to the heir through death, which is impossible: the transfer from the testator to the heir not being conceivable in an already-owned benefit or rent; for the lease contract is concluded hour after hour according to the occurrence of the benefit: if the lessor dies, the lease becomes void, what is owed by the contract being the benefits that occur upon his property, which became impossible through his death, the house passing to his heir, upon whose property the benefit now occurs; and if the lessee dies and the contract remained after his death, the heir would succeed him in the lease, making the pure benefit inherited, while it is not inherited; and because the contract required earning the rent from his property: were we to keep the lease after his death, the rent would be earned from others' property. If the lease was contracted for another (an agent, guardian, executor, or the waqf's administrator), the lease does not dissolve through his death: the entitled one and the obligee remaining, and what we incriminated being absent, namely the benefit having become for other than the contractor being owed by the contract and transferring to the heir through death, which is impossible: it was from the start for other than the contractor, and remains so after his death.

al-Babarti discussed this in al-'Inaya (12/466-467): if an animal was hired for a specific place and the animal's owner died in the middle of the road, the lessee has the right to ride the animal to the named place, against the rent, even though one of the two parties died and had contracted for himself, without the contract dissolving. The answer: that is due to necessity: he fears for himself and his wealth, finding no other animal in the middle of the desert, and no judge there to raise the matter to, to hire the animal from him; some of our shaykhs said that if another animal is found there, he loads his baggage on it and the lease dissolves; likewise if he dies in a place where a judge is, the lease dissolves: there is no necessity to keeping the lease with the presence of what contradicts keeping, which is the lessor's death; and the necessity being established, the non-dissolution is by necessary istihsan, and the istihsan does not make qiyas contradicted, like the purification of basins and vessels. It was objected with the mandator's death: the lease then dissolves, though he did not contract for himself; but the converse is not necessary in its like: it is not because every contractor for himself, upon dying, dissolves the lease, that everything dissolving the lease does so through the contractor's death. The reason for this contradiction: the meaning for which the contract dissolves at the death of the contractor for himself (the necessity of the owned benefit, or the owned rent for other than the one contracted for, being owed by the contract) is present, and the rescission occurs for that.

This does not resemble one who married off his slave woman and then died: the marriage does not become void, unlike the lease, because the marriage contract does not fall upon benefits, but upon ownership of permissibility, which is owned through the contract. If one of the two contractors dies while an unharvested crop is in the land, the lessee or his heirs may claim it in the land, with the mentioned rent owed by them; this does not resemble when the term elapses while an unharvested crop is in the land: the crop is left and the rent of the like becomes due, the substitute not having been named for this period, so there is nothing there but the rent of the like. (Refs.: al-'Inaya, Sharh al-Hidaya 12/466-467; al-Jawhara an-nayyira 3/376-377; al-Ikhtiyar 3/73; al-Lubab 1/497; Mukhtasar al-Wiqaya 2/124-125.)

al-Kasani, may Allah have mercy on him, said that the lease contract ends through the death of the one for whom the lease was concluded, except for an excuse with us. With ash-Shafi'i, it does not become void through death, like the sale of the object. The discussion of this is on a root we mentioned regarding how this contract is concluded: the lease, with us, is concluded hour after hour according to the benefits occurring little by little; that being so, what occurs of benefits in the heir's hand, the testator did not own, because nonexistent: ownership being a quality of the existing, not the nonexistent, the heir therefore does not own it: the heir only owns what was upon the testator's property, and what he did not own escapes inheritance, unlike the sale of the object: the object being a property subsisting by itself, which the testator owned until the time of his death, its transfer from him to the heir is allowed; the benefits only being owned through contract, and what occurs of them in the heir's hand never having been contracted upon: nonexistent during the testator's lifetime, and the heir did not contract upon them, ownership therefore not being established for the heir with regard to them. ash-Shafi'i holds that the benefits of the term are considered existing from the outset, like subsisting objects, resembling the sale of the object, and sale does not become void through the death of one of the two parties: so does the lease. On this basis, what emerges from two men renting a house from a man and one of the two lessors dying is that the lease becomes void in his share with us, and remains in the living one's share in its state: this is an arising co-ownership, which does not affect the contract in the famous narration, for what we explained before. Likewise if two men rented a house from a man and one of the two lessees died: if the heir consents to the contract remaining, and the contractor too, it is allowed, that being like an initiated contract; if the agent of the contract dies, the lease does not become void: the contract was not made for him, he being only the contractor; likewise if the father or the executor dies, for what we said; likewise if the minor's father dies in hiring the wet nurse: the lease is not dissolved, the lease having been made for the minor and the wet nurse, the two of them standing; if the wet nurse dies, the lease dissolves; likewise if the minor dies: each of the two being a party to the contract. The basis is that the lease becomes void through the death of the one for whom the contract was made, and does not become void through the contractor's death: obtaining the contract after the death of the one for whom it was made requires changing its cause: if he is the lessor, the contract requires obtaining the benefits from his property; were we to keep it after his death, the benefits would be obtained from another's property, contrary to the contract's requirement; and if he is the lessee, the contract requires earning the rent from his property; were we to keep the contract after his death, the rent would be earned from another's property, contrary to its cause, unlike the case of one for whom the contract was not made (the agent and the like): the contract coming from him not requiring earning the benefits, nor earning the rent from his property: keeping the contract after his death does not change its cause; likewise the waqf's guardian, who contracted and then died: the lease is not dissolved, the contract not having been made for him, his death not changing its ruling.

If an animal was hired to Mecca and the lessor died in part of the desert, the lessee has the right to ride it, or load upon it, to Mecca, or to the closest of places to the residence: ruling the lease void here would lead to harming the lessee, exposing his wealth and person to destruction, so it was made an excuse for the lease's remaining: this is the meaning of their saying that the lease, just as it is rescinded by an excuse, remains by an excuse. They also said regarding one who rented camels to Mecca going and returning, and whose camel-man died on part of the road: the lessee has the right to ride them, or load upon them, to Mecca, with the named amount owed by him: ruling the lease dissolved on the road would harm the lessee, since he would find nothing to carry him or his clothes, and would harm the absent heirs, the benefits being lost without compensation: obtaining the contract thus having consideration from both sides. Upon reaching Mecca, the matter is raised to the judge: rescinding the lease no longer harming him, since he can hire from another camel-man; the judge then considers the better: if he considers selling the camels and keeping the price for the heirs better, he does that; if he considers confirming the lease to Kufa better, he does that: he was appointed a watchful overseer, and one of the two acts may be the sounder, and it is chosen. They said: the best, if the lessee is trustworthy, is that the judge confirm the lease; and the best, if he is not, is that he rescind it: if he rescinds it and the lessee had advanced the rent, the judge hears the evidence upon it and rules it from its price: the lease, once dissolved, giving the lessee the right to hold the object until he obtains the whole rent, and the judge standing in the absent one's place, appointing an opponent for him and hearing the evidence against him. If one of those for whom the lease contract was made dies before the term ends, with an unharvested crop in the rented land, it is left in the land until harvested, with what he named of rent owed by the lessee or his heirs: ruling the dissolution and the crop's uprooting would harm the lessee, and keeping without compensation would harm the heir; and both rights can be preserved without harm by keeping the crop until harvested against rent: saying so is therefore required; and the named amount only became owed through istihsan. The qiyas would require the rent of the like: the contract having truly dissolved through death, but kept by ruling, resembling the contract's likeness, whose benefits' obtaining requires the rent of the like, as if he obtained them after the term's end. The reason of istihsan: the named amount covered this period, and necessity of the leaving with compensation making requiring the named compensation more likely to obtain mutual consent, unlike the leaving after the term's end, which the named amount did not cover: requiring the named amount becoming impossible, so the rent of the like is owed. (Ref.: Bada'i' as-sana'i' 4/222-223.)

The majority of the jurists (the Malikis, Shafi'is and Hanbalis) hold that the lease contract does not dissolve through the death of one of the two contractors while the leased object remains: the lease remains in its state, and the deceased one's heir stands in his place in obtaining the benefit and paying the rent.

The Malikis say: the lease does not dissolve through the death of one of the two contractors while the leased object remains and obtaining the benefits remains possible, by his words, peace be upon him:

"Whoever leaves wealth or a right, it belongs to his heirs"Cited by Ibn al-Arabi in al-Ishraf ala nakt masail al-khilaf (3/198-199), no. 1043, and by al-Bagawi in al-Ma'una (2/105)

this lease being left by the deceased: it must therefore belong to his heirs, and this negates the rescission; and because it is an exchange contract, not dissolving through the death of either contractor while the benefit has not perished or obtaining it has not become impossible, its root being sale; and because it is a contract attached to a benefit obtained from an object, not dissolving through the death of one of the two contractors, its root being the pledge; and because it is an exchange contract of an owner over the benefit of his property: it must therefore not dissolve through the owner's death, like his marriage contract over his slave woman. (Refs.: al-Ishraf ala nakt masail al-khilaf 3/198-199, no. 1043; al-Ma'una 2/105.)

The Shafi'is say: the lease does not dissolve, even if liability-based, through the contractors' death or one of them, but remains until the term ends: it is a binding contract that does not dissolve through death, like sale; the object is left after the lessor's death with the lessee or his heir, so that he obtains the benefit from it; if the lease is liability-based, what was contracted is a debt upon him: if the estate has fulfillment, it is hired to fulfill it; otherwise the heir has the option: if he wishes, he fulfills it and earns the rent; if he wishes, he declines, and the lessee rescinds the lease. Excepted from that is what if a house was bequeathed to Zayd for the length of Zayd's life: he accepts the bequest, Zayd leases it for a term, 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 bellies was stipulated; if the first tier of the waqf's beneficiaries hired out the endowed object for a term and the lessor tier died before its completion, while the endower stipulated oversight for each tier only for the duration of its entitlement; or if the guardian hired out a minor or his property for a term in which the minor does not reach majority by age, but reaches it by seminal emission while rational: the lease dissolves in the waqf, its entitlement having transferred at the lessor's death to another. (Refs.: al-Hawi al-kabir 7/400, 402; Rawdat at-talibin 4/70; Mughni al-muhtaj 3/417; Kanz ar-raghibin 3/204; Nihayat al-muhtaj 5/362-363; an-Najm al-wahhaj 5/387; ad-Dibaj 2/487.)

al-Mawardi, may Allah have mercy on him, said: the lease contract is binding, not dissolving through the lessor's nor the lessee's death: Malik, Ahmad and Ishaq said this. Abu Hanifa, Sufyan ath-Thawri and Layth ibn Sa'd hold that the lease becomes void through the lessor's and lessee's death, arguing that benefit contracts become void through the contractor's death (marriage, mudaraba and agency), and that the lease requires a lessor and a lessee: having become void through the lessee's loss, it becomes void through the lessor's loss. Its correction by qiyas: it is a lease contract, becoming void through the lessee's loss: it must therefore become void through the lessor's, if he hired out himself; and because the lessor's ownership disappearing from the lessee's body requires the lease's rescission, like his selling what he rented with the lessee's consent; and because the lease's benefits are only obtained through contract and ownership, the ownership having disappeared through death: the contractor became one over whom there is no contract, and the owner became one transferred from the contractor to a non-contractor, requiring the lease to become void: the contract and ownership not being able to combine. Our proof is that the pure exchange contracts that bind do not dissolve through one of the two contractors' death, like sale; if it is said it dissolves through the one who hired out himself's death, that is incorrect: the contract only becomes void through the object of the contract's loss, not the contractor's death; do you not see that were he alive and sick, the lease would become void, while the contractor is alive? For the master may exchange marriage over his slave woman's person, as he exchanges her service through the lease contract: his death not making void the contract over her person, it does not make void the contract over her service. Two qiyas free it from this unsoundness. One: it is a binding contract over the benefits of his property: it therefore does not become void through his death, like marriage over his slave woman. The other: it is one of the slave woman's two benefits: it therefore does not become void through the master's death, like the other benefit; and benefits being able to transfer through exchange, like objects, their transfer through inheritance like objects is allowed. Two qiyas free it from this unsoundness: one, that what can validly transfer through compensation can validly transfer through inheritance, like objects; the other, that what objects can validly transfer through in sales, benefits can validly transfer through in leases, its root being the contract of the living and free. And because through death he becomes unable to take possession of what delivery is owed through the lease contract: the contract does not therefore become void through it, like madness and drunkenness; and because it is a contract that does not become void through madness: it therefore does not become void through death, like sale; and because objects' benefits, their ownership remaining, are earned at times through pledge, and at other times through lease: what its pledge's benefit is earned for not becoming void through its ownership's transfer at death, it must be that what its benefit is earned through lease, when its ownership transfers at death, does not make its lease void: ash-Shafi'i argued with this in al-Umm; and because the heir only owns through inheritance what the deceased owned, and the deceased only owned the body, not the benefit: it is not allowed that the heir become owner of the body and the benefit; and because the waqf's lease does not become void through its lessor's death. Its correction by qiyas: it is a lease contract in which obtaining the benefit is possible: it must therefore not become void through its lessor's death, like the waqf. As for the answer to its analogy with marriage and mudaraba, with its dissolution by the waqf: if he returns it to marriage, marriage does not become void through death: its term ends through death, becoming like the lease term's end; and if he returns it to mudaraba and agency, the meaning in them is non-bindingness during life, and the permissibility of rescinding them without excuse: the lease is not thus, because of its bindingness during life. As for the answer to its analogy with the house's collapse: the meaning in it is the object of the contract's loss before its taking. As for the answer to its analogy with selling what he rented with the lessee's consent: its root is not accepted: the lease does not become void through sale with the lessee's consent, as it does not become void through sale with his displeasure: sale is disputed in its nullification; and it dissolves from its root through the hired slave's manumission, his master's ownership having left his body while the lease remained: so likewise when his ownership leaves through sale and death. As for the answer to his argument that benefits are obtained through contract and ownership, which death separates: their combination is considered at the time of contract, not afterwards, as with manumission and sale; and it is not prevented that what the deceased did not contract upon be obtained from the heir's hands, as what he bought's price is obtained from him, and what he sold's objects: the deceased having bound them through his contract, so the heir did not own them through his death. (Ref.: al-Hawi al-kabir 7/400, 402.)

The Hanbalis say: if the lessor and lessee die, or one of them dies, while the object of the contract is sound: the lease does not dissolve, like one who married off his slave woman and then died; and the rent's exigibility here is due to a cause from the lessee: it therefore becomes owed in his estate after his death, like one who dug a well into which a thing fell after his death: he guarantees it from his property, since its cause was from him during life; so here likewise. If the lessee dies with no heir to stand in his place in obtaining the benefit, or he is absent, like one who dies on the road to Mecca leaving his rented camel, with nothing of his to carry, and no present heir to stand in his place, Ibn Qudama said: the apparent words of Ahmad indicate that the lease dissolves for what remains of the term: an overriding event occurred preventing the lessee from the object's benefit, resembling usurpation; and because the contract's remaining harms the lessee and lessor: the rent being exigible from the lessee without benefit, and the lessor prevented from disposing of his property with the rent's loss upon him appearing. It was related from Ahmad regarding a man who rented a camel and died on part of the road: if the camel returns empty, he pays to the extent of what was owed to him, even with its burden and his riding, and the rent is owed to the place: the apparent being that he ruled the contract's rescission for what remains of the term if the lessee dies with no benefit remaining: obtaining the benefit having become impossible through an act of Allah, the Most High, resembling one who hired someone to pull his aching tooth, who recovered, or whose tooth was pulled before the pulling, or who hired a kohl-applier to kohl his eyes, which recovered or were gone; and it must be estimated that there was none of his heirs to stand in his place in the benefit: the heir standing in the deceased's place. al-Qadi interpreted it as the lessor taking the camel and preventing the heirs from benefiting; without that, the contract would not have dissolved: it does not dissolve for an excuse in the lessee while the object of the contract is sound, as if he sequestered the house and prevented dwelling in it; this is incorrect: if he prevented the heirs from benefiting, he earns nothing of the rent; and this differs from the sequestered lessee: the object of the contract is his benefiting, which is not despaired of through sequestration, since at any time he may exit sequestration and benefit, and he may delegate someone to obtain the benefit, with or without wage, unlike the deceased: his benefiting by himself and his substitute having vanished, resembling the forms we mentioned. If the waqf's beneficiary rented the waqf for a term then died during it, the right passing to the one after him: two views. One: the lease does not dissolve: he rented it during the time of his authority, so it does not become void through his death, as if he had rented his free property. The other: the lease does not dissolve for what remains of the term: it was shown that he rented his property and another's, dissolving for his without another's, like one who rented two houses, one his, the other another's: the benefits after death being another's right, his contract does not execute upon them without ownership or authority, unlike the free: the owner owning from the deceased's side, he only owns what he left, and what he disposed of during his life does not transfer to the heir; and the benefits he rented having left his ownership through the lease, they do not transfer to the heir; and the waqf's second tier owning from the endower's side, what occurs after the first tier belongs to them: the lessor's act thus reached their property without their permission, and he has no authority over them: it is not valid. It is inferred from it that the whole lease becomes void, based on dividing the transaction: this is ash-Shafi'i's school; on this, if the lessor took the whole rent, and we say the lease's dissolution: the one to whom the waqf passes takes, and the lessee returns to the lessor's heirs for the share of the rent's remainder; if we say it does not dissolve, the one to whom the waqf passes returns to the estate for his share. (Refs.: al-Mughni 5/271-272; ash-Sharh al-kabir 6/106; Sharh az-Zarkashi 2/180, 182; al-Furu' 4/331; al-Mubdi' 5/104; Kashshaf al-qina' 4/34; Sharh muntaha al-iradat 4/56; Matalib uli an-nuha 3/661; ar-Rawd al-murbi' 2/99; Manar as-sabil 2/223.)

Does the sale of the leased object end the lease?

The benefit in it is legal, not perceptible, and the contract's establishment upon the benefit does not prevent selling the body, like the married slave woman. On the opposite view among the Shafi'is, its sale to other than the lessee is not valid: the lessee's hand being an obstacle preventing delivery to the buyer, validity being thus forbidden, as in selling the usurped thing.

Does the lease dissolve then, or not? The Shafi'is, on one view, and the Hanbalis, on one view, hold that the lease dissolves for what remains of the term: the lease and ownership do not combine, the contract having fallen upon the object's benefit, the contractor's ownership of the object becoming void, like marriage: one who married his slave woman then bought her has his marriage become void; and because ownership of the body preventing the lease's initiation prevents its continuation, like marriage. Upon this, the rent for what remains of the lease term falls away from the buyer, and the lessee returns to the lessor for the rent of the term's remainder, as if the lease became void through the object's destruction; and if the lessor took the whole rent, the remainder is deducted from the price. The sound view with the Shafi'is and the Hanbalis' other view is the Malikis' view: that the lease does not dissolve through the leased object's sale: he owned the benefit through a contract, then became owner of the body through another contract, with no contradiction between them, just as he owns the fruit through a contract, then the root through another contract; and if the legatee of the benefit rents from the body's owner, the lease is valid: proving that benefit ownership does not contradict the contract upon the body; likewise the owner renting the already-rented object from its lessee is allowed. Upon this, the rent remains upon the buyer, along with the price, both returning to the seller, as if the buyer were another. All of this when the buyer knew of the lease and the amount of its term, and has no right to rescind the sale; if he did not know of the lease, or knew of it while ignorant of the term, he has the option between rescinding the sale and confirming it free of charge, with no rent for that term, according to the Malikis, Shafi'is and Hanbalis in the school; on a view of the Hanbalis, he has rescission or compensation. If he knew the term, but thought the remaining rent was his: he has the option on the sound view among the Shafi'is; ash-Shashi said he has no option. Stipulating the rent for the buyer: the Malikis have two views, permissibility and negation. (Refs.: Mawahib al-jalil 7/402, 404; al-Ma'una 2/113; al-Ishraf 3/226, no. 1077; al-Muhadhdhab 1/407; Rawdat at-talibin 4/76, 78; Mughni al-muhtaj 3/423-424; Nihayat al-muhtaj 5/375-377; an-Najm al-wahhaj 5/399-400; Kanz ar-raghibin 3/211-212; ad-Dibaj 2/492-493; al-Mughni 5/273-275; al-Kafi 2/318-319; ash-Sharh al-kabir 6/114-115; Sharh az-Zarkashi 2/180, 182; al-Mubdi' 5/107; al-Insaf 6/68-69; Kashshaf al-qina' 4/37-38; Sharh muntaha al-iradat 4/62-63; Matalib uli an-nuha 3/621; ar-Rawd al-murbi' 2/101; Manar as-sabil 2/224; al-Ifsah 2/29.)

As for the Hanafis, al-Kasani, may Allah have mercy on him, said: if the lessor sells the rented house after having rented it, without excuse, it is mentioned in the root that the sale is not permitted; it is mentioned in some places that the sale is suspended, and in some that it is void. Reconciliation is possible: his saying "is not permitted" means it does not execute, which does not prevent suspension; and his saying "void" means it has no apparent ruling for the present: that is the interpretation of suspension. The sound view: it is valid with regard to the seller and the buyer, suspended with regard to the lessee: when the term elapses, the sale binds the buyer, who may not refuse taking, and the seller may not take the sold thing from the lessee's hand without the lessor's authorization: if he authorizes, it is allowed; if he refuses, the buyer has the sale's rescission; and once he rescinds it, it does not become allowed again after the lease term ends. Does the lessee own rescinding this sale? It is mentioned in the apparent narration that he has no right of rescission, so that even if he rescinded, it would not occur: the lease term having elapsed, the buyer takes the house. at-Tahawi related from Abu Hanifa and Muhammad that he may break the sale, and once he breaks it, it does not become allowed again. Abu Yusuf related that the lessee may not break the sale nor the lease: like the defect: if the buyer knew of it at the time of purchase, the lease becomes binding; if he did not know at the time of purchase, he has the option: if he wishes, he breaks the sale for the defect, which is the lease; if he wishes, he confirms it: all of this is our companions' school. ash-Shafi'i, may Allah have mercy on him, said: the sale executes without the lessee's authorization: the sale having met its locus, the body being the lessor's property, and the lessee's right being in the benefit, the sale's locus being the object, in which the lessee has no right. Our view: the seller is unable to deliver it: the lessee's right having attached to it; and a man's right must be preserved from nullification when possible, which is here possible through suspension regarding him: we therefore said permission regarding the buyer and suspension regarding the lessee, preserving the two rights and considering the two sides.

Upon this, if the lessor rents his house then acknowledges it to someone, his acknowledgment executes regarding himself and does not execute regarding the lessee, remaining suspended until the lease term elapses: it then executes regarding him too, and the house is adjudicated to the acknowledged one. This differs from one who rents a house from a man, then rents from another: the second lease is suspended upon the first lessee's authorization: if he authorizes it, it is valid; if he nullifies it, it becomes void; and here the lessee may not nullify the sale. The difference's reason is that the lease contract fell upon the benefit, whose delivery is owed: it is ownership of the benefit, and the benefits are the first lessee's property: they become valid through his authorization and void through his nullification; as for the acknowledgment, it only fell upon the object, which is the lessor's property, but the lessee has a right in it: that right disappearing through the first lessee's precedence, who authorizes the second lease until it executes, the rent belongs to him, not the house's owner; whereas in sale, the price belongs to the property's owner. And the difference's reason, in the manner we mentioned: the lease fell upon the benefit, which is the first lessee's ownership: if he authorizes, its compensation belongs to him; as for the price, it is the object's compensation, and the object is the lessor's property: its compensation therefore belongs to him. And through the lease, the first lessee's contract does not dissolve as long as the second lease's term has not elapsed: if their two terms are one, the two terms end together; if the second's term is shorter, the first stays until his is complete.

Likewise if the lessor pledges it before the lease term ends: the contract is allowed between the lessor and the pledgee, suspended regarding the lessee: his right having attached to the lessee, he may sequester until his term ends. Likewise, the pledgee's sale of the pledged thing by the pledgor is allowed between seller and buyer, suspended regarding the pledgee, who may sequester it until he obtains his money; if the pledgor redeems it, delivering the house to the buyer is owed by him, as in the lease; except that here, if the pledgee authorized the sale until the buyer comes and the house is delivered to him, the price becomes pledged with the pledgee, standing in the house's place: his right of sequestering the object being established as long as it was in his hand, and the object's substitute standing in the object's place, his right of sequestering is thus established. al-Quduri differentiated between the pledge and the lease: as for the pledge, the pledgee may nullify the sale, and the lessee does not have that: the lessee's right being in the benefit, not in the object, his rescission being a disposition in the locus of others' right, so he does not own it; as for the pledgee, his right attached to the pledged object: do you not see that he becomes, through it, the one recovering the debt? His rescission is therefore a disposition in the locus of his own right, and he owns it. Allah is most knowing. (Ref.: Bada'i' as-sana'i' 4/207-208.)