Islamic Fiqh > Companies and leases > Ijara (leasing) > The seventh issue: taking a wage for the imamate
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
The jurists differed on the ruling of taking a wage for the imamate in prayer: is it permitted or not? The early Hanafis, the Shafi'is on the more correct view, the early Hanbalis according to the school, and Ibn Habib among the Malikis, hold that taking a wage for the imamate in the obligatory prayer is not permitted, nor in the voluntary, such as the tarawih on the more correct view, for he prays for himself and, when he prays, whoever wishes may follow him, even if he does not intend the imamate; and if something depends on his intention, it is only attaining the virtue of the congregation, a benefit exclusive to him that does not accrue to the one who hires.
Imam al-Nawawi (may Allah have mercy on him) said: hire for leading the obligatory prayers is invalid, and likewise for the tarawih and all voluntary prayers on the more correct view, for he prays for himself, and when he prays whoever wishes follows him, even without intention of imamate; and if something depends on his intention, it is only attaining the virtue of the congregation, a benefit exclusive to him. Whoever permitted it compared it to the adhan as a public sign (shi'ar) (Rawdat al-Talibin 4/18).
The Malikis on the well-known position, the later Hanafis (and the fatwa is upon them), the Shafi'is in one view and the Hanbalis in one narration hold that taking a wage for the imamate is permitted, for performing the public sign by this means, like the adhan.
Ashhab narrates from Malik that he was asked about prayer behind a man hired in Ramadan to lead the people's standing. He said: I hope there is no harm in it; and if there is harm in it, it is upon him, not upon whoever prayed behind him. Ibn al-Qasim narrates from him that he disliked it, saying: it is more severely disliked for him in the obligatory.
The Malikis say: taking a wage for prayer, meaning leading it alone, obligatory or voluntary, is disliked, and it is more severely disliked in the encouraged act; if the contract occurs it is valid and judgment is made by it, like hire for pilgrimage. Prayer behind one who takes a wage is permitted without disapproval, for the hire is not forbidden to him so as to be a defect impairing his imamate: it is only disliked for him, and leaving it is better. The imamate of one who did what it was better to leave is not disliked, just as the imamate of one who left what it was better to do than the voluntary prayers is not disliked.
The place of the disapproval is when the wage is taken from the worshippers; but if it is taken from the treasury or from the mosque's endowment (waqf), there is no disapproval, for that belongs to the chapter of assistance, not the chapter of hire (al-Istidhkar 5/418; Sharh Mukhtasar Khalil 1/236; al-Bayan wa-l-Tahsil 1/469). As for drawing sustenance from the imamate, there is consensus on its permissibility.
Al-Qarafi (may Allah have mercy on him) said: partaking of provisions for the imamate is agreed upon as permitted, for it belongs to the chapter of goodness, not the chapter of hire, contrary to what many jurists thought. He said: partaking of sustenance for the imamate in prayer is only admitted on the view permitting hire for it, and one refrains from it out of scrupulousness on the view of disagreement about it; and it is not understood that the permissibility of provisions for it is like the permissibility of endowment for it without the slightest disagreement, for sustenance is not an exchange at all; how could it be, when they permitted partaking of it in the narrowest of situations where exchange is absolutely prohibited, namely judicial office and judgment between the people? Thus there is no scruple in partaking of provisions for the imamate from this aspect (al-Furuq 3/8; see also Mukhtasar al-Wiqaya 2/119; al-Bahr al-Ra'iq 5/249; al-Jawhara al-Nira 3/360; Majma' al-Anhar 3/533; al-Lubab 1/489; Ibn Abidin's gloss 4/143; Tanqih al-Fatawa al-Hamidiyya 5/420-421; Rawdat al-Talibin 4/18; Mughni al-Muhtaj 3/399; al-Najm al-Wahhaj 5/353; Nihayat al-Muhtaj 5/332; Majmu' al-Fatawa 30/202; al-Insaf 6/45-46; Kashshaf al-Qina' 4/13; Sharh Muntaha al-Iradat 4/41; Manar al-Sabil 2/217-218).
The scholars differed: is hire for washing the deceased, shrouding and carrying him permitted or not? The Hanafis according to the school hold that hire for washing the deceased is not permitted, because it is an obligation; it is also said that it is permitted. As for hire for burying the deceased, it is permitted. As for carrying the bier, the school holds it permitted absolutely; it is said: if others can be found, it is permitted; if none exist, it is not, for the carrying then becomes obligatory upon them (Bada'i' al-Sana'i' 4/191-192; Sharh Fath al-Qadir 2/112; al-Jawhara al-Nira 3/361; Ibn Abidin's gloss 2/200).
The Malikis hold that hire for washing the deceased, carrying him and burying him is permitted so long as it is not binding on him; if it becomes obligatory upon him, because no one else exists or because another's help is not accepted, hire is then not permitted. This is a basis with them for the collective obligations: a wage for them may be taken so long as they are not binding upon the doer (al-Sharh al-Kabir 5/366; Sharh Mukhtasar Khalil 7/23; al-Taj wa-l-Iklil 4/490; al-Sawi's gloss on al-Sharh al-Saghir 8/469).
The Shafi'is say: hire for preparing the deceased, carrying him and burying him is valid, even if it becomes binding on the hired man, for it is a worship for which intention is not required, and because the doer is not intended in his act so that the act be attributed to him; the expense of that falls originally upon the estate, then upon the wealth of whoever owes his upkeep; if there is none, the wealthy Muslims must undertake it: the hired man is therefore not intended in his act. And offerings that assist him do no harm, like the one under constraint: feeding him becomes obligatory while fining him the equivalent (Rawdat al-Talibin 4/17; Mughni al-Muhtaj 3/398; Nihayat al-Muhtaj 5/333; al-Najm al-Wahhaj 5/354; al-Dibaj 2/472; Kanz al-Raghibin 3/185; Asna al-Matalib 2/410).
The Hanbalis according to the school: taking a wage for the washing, the shrouding, the carrying and the burial is disliked, for it is a means of drawing near, unless he be needy: he is then given from the treasury; if that is not possible, he is given the equivalent of his work. On another view, taking a wage for washing the deceased is forbidden, for what is exclusive to its doer being among the people of nearness admits no wage, like prayer and fasting. This is the view of al-Minhaj. Al-Ruhaybani said: it is a good direction, agreeing with the principles (Matalib Uli al-Nuha 1/844; al-Mubdi' 2/220; Kashshaf al-Qina' 2/100; al-Rawd al-Murbi' 1/339).
In sum: the Hanafis distinguished the washing from the carrying and the burial: no wage for the first, a permitted wage for the others according to the school. The Malikis permitted the wage so long as the act is not binding. The Shafi'is permitted it absolutely, whether binding or not. The Hanbalis according to the school disliked it, except for the needy.
The Hanafis require, for the validity of the contract, that it be free of any condition the contract neither requires nor admits, so that even if one rents out his house on condition of dwelling in it a month and then handing it to the lessee, or land on condition of cultivating it and then handing it to the lessee, or a mount on condition of riding it a month, or a garment on condition of wearing it a month and then handing it to the lessee, the hire is corrupt. For it is a condition the contract does not require and does not admit; and an added benefit stipulated in the contract with no counter-value, in the exchange of wealth for wealth, would be riba (usury) or carry its semblance: all of that corrupts the contract.
On the same basis are also excluded the condition of plastering the house, repairing its gutter and its weakened parts, repairing the well, the cistern and the drain, the dredging of watercourses; as well as, in renting land, the feeding of the slave and the fodder of the mount in renting the slave and the mount and their like; for all that is a condition contradicting what the contract requires and not admitting it, procuring a benefit for one of the two contracting parties.
Al-Kasani (may Allah have mercy on him) said: it is mentioned in the basis: if one rents a house for a known period for a named wage on condition of not dwelling in it, the hire is corrupt and no wage is owed by the lessee if he does not dwell in it; if he dwells in it, the wage of the like is owed him, without deduction from what was named.
As for the corruption of the contract, it is apparent: his condition, namely not to dwell in it, negated the cause of the contract, which is benefiting from the rented thing; it is a condition contradicting what the contract requires and not admitting it, so it is a corrupt condition. As for the wage not being owed at all if he does not dwell, and the like's wage being owed if he dwells, that too is apparent: for the like's wage in corrupt hires is owed only by actual enjoyment of the rented thing, not by delivery, that is, vacating it; as in the corrupt marriage, for vacating is enabling, which is not realized with corruption, because of the legal prevention from benefiting from the thing, which resembles people's physical prevention, namely usurpation, unlike the valid hire where there is no prevention and delivery is realized. So if the lessee does not benefit from the thing, he has forfeited his own right to the benefit: the lessor's right to the wage therefore does not lapse; and if he dwells in it, he has enjoyed the rented thing by a corrupt contract, which gives rise to the like's wage.
As for his saying: without deduction from the named, it is problematic, for it is established in the school of our three [imams] that what is owed in the corrupt hire after actual enjoyment of the rented thing is the lesser of the named and the like's wage when the wage is named; yet he says here that nothing is deducted from the named. Among the shaykhs, some said the issue admits interpretation: it is understood thus: nothing is deducted from the named if the like's wage and the named are identical.
Others applied the narration to its apparent meaning and said: the two contractors did not make the named the counterpart of the benefits, since the lessee stipulated not dwelling, nor the counterpart of delivery, for what we said of its non-realization with the corruption of the contract; so if he dwells, he has enjoyed benefits with no counterpart: the like's wage is therefore owed, up to whatever it reaches, as if no naming had been mentioned in the contract at all; except that he said: without deduction from the named, because the lessee consented to the named without enjoyment: a fortiori with enjoyment.
If one rents out his house, land, slave or mount with the condition of handing over by the lessee, it is permitted, for the lessee's handing over belongs to what the contract requires; is it not seen that it is established without the condition? It is therefore a condition confirming what the contract requires, not contradicting it, and it is as if he had rented it on condition that the lessee acquire the lessee's benefit. If one rents with the condition of advancing the wage, or stipulates upon the lessee to give him for the wage a pledge or a guarantor, it is permitted, if the pledge is known and the guarantor present, for it is a condition admitting the contract without being required by it, as we said of sales: it is therefore permitted, as in the sale of the object (Bada'i' al-Sana'i' 4/194-195).
The generality of jurists hold that if a pillar or one of the conditions of validity of the hire is missing, the hire is corrupt and its annulment is required, with no wage before the work. Once the hire is completed despite its corruption, the jurists differ on what is owed in it: is the like's wage owed, up to whatever it reaches, or the like's wage without exceeding the named amount?
The jurists of the four schools agree: if the hire is corrupt and the wage was not named or was unknown, as when hiring a mount or a garment, or renting a house on condition of developing it, the like's wage is owed, up to whatever it reaches, by consensus; likewise if one hires a worker without naming him a wage: the like's wage is owed him, up to whatever it reaches, for when the wage is not named, one does not accept enjoyment of the benefits without counterpart, which would be a transfer of ownership for the price, the original indicator of rental value: the benefits are therefore valued by the like's wage, for it is in truth the value of the benefits.
None of the accessory rulings is established in this hire, except what concerns the lessee's right over it, namely its being a trust in his hand, to the extent that if it perishes he does not guarantee it, the perishing having occurred in a possession permitted to him by the lessor.
As for the void hire (batila), that which lacks a condition of formation, it has no ruling at all, for what does not form has its existence equal to its non-existence as to the ruling: this is the definition of the void among legal dispositions, like sale and their like. No wage therefore binds in the void hire by using the rented thing and enjoying its benefit, even if the rented thing is prepared for exploitation, for the hire being then void and not formed at all, what it contains is void likewise, and the lessee's enjoyment of the rented thing is without contract.
But the like's wage binds, up to whatever it reaches, if the rented thing in the void hire is endowment (waqf) or orphan property, and likewise the property of the insane. To the extent that if someone buys a house that turns out to be the property of an orphan or an endowment after dwelling in it for a period, he must pay the like's wage for that period. The later Hanafi jurists gave the fatwa so, to preserve the wealth of the orphan and the endowment (Bada'i' al-Sana'i' 4/218; Durar al-Hukkam 1/435).
The Shafi'is say: the void hire, as when a minor hires an adult for work and he performs it: the adult deserves nothing, for he is the one who deprived himself of his work; and the hire is void, not corrupt (Mughni al-Muhtaj 3/421-422; al-Najm al-Wahhaj 5/395).
They differed if the wage is known but a condition of validity is missing, as if the named amount were wine or a pig, and so on. The Hanafis (except Zufar) hold that what is owed in the corrupt hire is the like's wage without exceeding the named amount, because of the two parties' consent to it: if the named amount is nine hundred and the like's wage a thousand, he takes only nine hundred, and no more than the named is taken.
For benefits have no value except by contract or semblance of contract, by necessity, given people's need, and the parties valued them in the contract by what they named, which amounts to waiving the increase; for if the increase over the named were owed, it would be owed without contract, and benefits are only valued by contract, unlike the corrupt sale: what is sold by a corrupt sale is guaranteed at its value, up to whatever it reaches, for the guarantee there is in exchange for the object itself, and objects have intrinsic value, so their whole value is owed; when the named amount lapses, it is as if the object perished without contract: the value is therefore owed (Bada'i' al-Sana'i' 4/218; al-Jawhara al-Nira 3/373; al-Lubab 1/495; Durar al-Hukkam 1/435; Ibn Abidin's gloss 6/49).
The majority of jurists, the Malikis, the Shafi'is, the Hanbalis and Zufar among the Hanafis, hold that the like's wage is owed in the corrupt hire, up to whatever it reaches, whether it exceeds the named amount or falls short of it, and whether the wage is known or unknown; for benefits are one of the two kinds of counter-values, like objects, and it is established that if one buys by a corrupt sale and destroys the object, its value is owed; so too the hire, and because it is a benefit enjoyed by a corrupt contract intended as counterpart: the like's wage must therefore bind, as if it were less than the named (al-Ishraf 3/211, no. 1057; al-Ma'una 2/109; al-Sharh al-Kabir 5/343; al-Taj wa-l-Iklil 4/469; Tathbir al-Mukhtasar 4/554; Sharh Mukhtasar Khalil 7/7; al-Sawi's gloss 8/494-495; al-Bayan 7/333-334; Mughni al-Muhtaj 3/421-422; Nihayat al-Muhtaj 5/373; al-Najm al-Wahhaj 5/395; al-Dibaj 2/491; Asna al-Matalib 2/433; al-Mughni 5/258; al-Sharh al-Kabir 6/140; Kashshaf al-Qina' 4/55).
Is the wage owed, in the corrupt hire, upon delivery and vacating, or upon use and actual enjoyment? The Hanafis and the Hanbalis in a narration chosen by Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him) hold that the wage is not owed in the corrupt hire by vacating: it is owed only by actual enjoyment, unlike the valid hire, where the wage is owed by vacating whether one benefited or not, so long as one was left free access to it. For it is a corrupt contract over benefits not enjoyed: their counterpart therefore does not bind him, like the corrupt marriage (Bada'i' al-Sana'i' 4/218; al-Jawhara al-Nira 3/373; al-Lubab 1/495; Durar al-Hukkam 1/435; Ibn Abidin's gloss 6/49; al-Mughni 5/258; al-Sharh al-Kabir 6/140; al-Mubdi' 5/119).
The Malikis, the Shafi'is and the Hanbalis according to the school say: if he takes possession of the rented object in the corrupt hire, the like's wage is upon him whether he used it or not, for it is an object taken into possession in the manner of hire: the loss of the benefit in it is therefore guaranteed by way of onerous disposition, whose basis is the valid hire; for everything that would perish under his hand by a valid contract he guarantees: he must therefore guarantee it if it perishes under his hand by a corrupt contract, like objects in sale; the opposite is objects in gift: since he does not guarantee them if they perish under his hand by a valid gift, he does not guarantee them if they perish under his hand by a corrupt gift (al-Ishraf 3/211, no. 1057; al-Ma'una 2/109; al-Bayan 7/333-334; Mughni al-Muhtaj 3/421-422; Nihayat al-Muhtaj 5/373; al-Najm al-Wahhaj 5/395; al-Dibaj 2/491; Asna al-Matalib 2/433; al-Mughni 5/258; al-Sharh al-Kabir 6/140; Kashshaf al-Qina' 4/55).
But the Shafi'is say: real possession is required in the corrupt hire: vacating the real estate does not suffice in the corrupt hire, though it suffices in the valid; likewise placing it before him suffices in the valid, not in the corrupt; and likewise, if the lessor offers the object to the lessee in the corrupt hire and the latter refuses, the wage is not established, for it is established only by one of two things: a valid contract enabling enjoyment of the benefit, or the perishing of the benefit under his hand; neither occurred (al-Bayan 7/333-334; Mughni al-Muhtaj 3/421-422; Nihayat al-Muhtaj 5/373; al-Najm al-Wahhaj 5/395; al-Dibaj 2/491; Asna al-Matalib 2/433).
The Hanbalis according to the school say: if he takes delivery of the object of the contract in the corrupt hire until the term ends or part of it, or a period in which the benefit could first be enjoyed, the like's wage is upon him for the duration of its remaining in his hand, whether he dwells in it or not, for the benefits perished under his hand for a counterpart not delivered to the lessor: it therefore reverts to its value, as if he had enjoyed it. And if he does not take delivery of the object in the corrupt hire, no wage binds him, even if the owner offers it, for the benefits did not perish under his hand and the corrupt contract has no effect, unlike the valid hire (al-Mughni 5/258; al-Sharh al-Kabir 6/140; al-Mubdi' 5/119; Kashshaf al-Qina' 4/55; Matalib Uli al-Nuha 3/673).
The jurists of the four schools, the Hanafis, the Malikis according to the school, the Shafi'is and the Hanbalis, agree: the rented object in the lessee's hand for the duration of the hire is a trust; he guarantees it only if he transgresses or neglects its safekeeping, whether the hire is valid or corrupt.
Al-Kasani (may Allah have mercy on him) said: there is no disagreement that the rented thing is a trust in the lessee's hand, like the house, the mount, the service slave and their like, to the extent that if it perishes in his hand without his doing, no guarantee is upon him, for taking possession in hire is a permitted possession: it is therefore not guaranteed, like possession of the deposit and the loan for use, whether the hire is valid or corrupt, as we said (Bada'i' al-Sana'i' 4/210; al-'Inaya 12/423-425; Tabyin al-Haqa'iq 5/133; al-Jawhara al-Nira 3/338; Majma' al-Damanat 73; Durar al-Hukkam 1/544).
Except that Imam Ibn Nujaym expressly stated that if custom runs to guaranteeing the rented object, he guarantees it. He said: at the time of composing this passage there came to me a question about one who had rented out a kitchen for cooking sugar, in which there were earthenware vessels, with permission for the lessee to use them, and they perished, while established custom in kitchens holds that they are guaranteed by the lessee. I answered that established usage counts as the stipulated condition: it is therefore as if he had expressly stipulated their guarantee upon him (al-Ashbah wa-l-Naza'ir, p. 99).
The Malikis say: whoever rents something, it is a trust in his hand; if he claims its loss or perishing, he is deemed truthful and does not guarantee it, for he is trustworthy on the more correct view, whether it is something that can be taken from him unseen, like the garment, or not, like the mount. He swears if he is suspect: it was lost and I was not negligent; one who is not suspect does not swear: so said Ibn al-Qasim.
It is said: he swears absolutely, that is, concerning loss and negligence. It is said: one who is not suspect swears concerning negligence; as for loss, he is deemed truthful without swearing, for loss mostly arises from his negligence: his oath "I was not negligent" suffices. In the book of Ibn Sahnun (may Allah have mercy on him) there is a view in favor of the hired man's guarantee (al-Sharh al-Kabir with al-Dasuqi's gloss 5/370; al-Taj wa-l-Iklil 4/494-495; Sharh Mukhtasar Khalil 7/26; Tathbir al-Mukhtasar 4/574; al-Sawi's gloss 9/31).
The Shafi'is say: the hand of the hirer over the rented thing, mount, garment or other, is a hand of trust for the whole duration of the hire definitively: he does not guarantee what perishes in it without transgression or shortfall. Al-Damiri said: by consensus, for his right cannot be enjoyed except by placing the hand upon it, and he must return its losses, like the depositor (al-Tanbih 125; Mughni al-Muhtaj 3/409; Nihayat al-Muhtaj 5/352; al-Najm al-Wahhaj 5/372; Kanz al-Raghibin with the gloss of Qalyubi and Umayra 3/196; al-Dibaj 2/481).
Ibn Qudama (may Allah have mercy on him) said: the rented object is a trust in the lessee's hand; if it perishes without negligence, he does not guarantee it. Al-Athram said: I heard Abu Abdillah [Ahmad] asking about those who rent out the canvas canopy or the tent to Mecca, when it goes missing from the hirer by theft or disappearance: does he guarantee? He said: I hope he does not guarantee; and how would he guarantee if it disappears? He does not guarantee, and we know of no disagreement in this, for he took the object to enjoy a benefit to which he is entitled: it is therefore a trust. And if the hire is corrupt, he likewise does not guarantee the object if it perishes without negligence or transgression, for it is a contract whose valid form does not entail guarantee: its corrupt form therefore does not entail it, like agency and the capital partnership; and your ruling for a corrupt contract as to the obligation of guarantee is the ruling of the valid one: what entails guarantee in its valid form entails it in its corrupt form, and what does not entail guarantee in its valid form does not entail it in its corrupt form (al-Mughni 5/311-312; al-Sharh al-Kabir 6/128; Kashshaf al-Qina' 4/45). Ibn Muflih (may Allah have mercy on him) said: the rented object is a trust in its lessee's hand; if it perishes without negligence he does not guarantee it, with no difference between the valid hire and the corrupt hire (al-Mubdi' 5/113).
The jurists differed when the rented object perishes after the term of the hire in his hand, without transgression or negligence, before it is demanded from the lessee. The Hanafis, the Shafi'is on the more correct view and the Hanbalis hold that if the rented object perishes after the end of the term or the work and before its return to its owner, without transgression or negligence, no guarantee is upon him if he does not use it, by continuity of the prior status (istishab): he is like the depositor, for returning it is not required of him, only its vacating between him and the owner, like the deposit. Imam Malik and the Shafi'is, in a view contrary to the more correct one, hold that he guarantees after the hire's expiry, for he is not permitted to withhold it: it resembles the temporary loan whose time has passed (al-Jawhara al-Nira 3/338; Majma' al-Damanat 80; al-Tanbih 125; Mughni al-Muhtaj 3/409; Nihayat al-Muhtaj 5/352; al-Najm al-Wahhaj 5/372; Kanz al-Raghibin with the gloss of Qalyubi and Umayra 3/196; al-Dibaj 2/481; al-Mughni 5/311; al-Sharh al-Kabir 6/128; al-Mubdi' 5/113; Kashshaf al-Qina' 4/55; Matalib Uli al-Nuha 3/696).
The return of the rented object after the expiry of the hire: the jurists differed about the rented object in the hired man's hand: is its return to its owner required of him or not? They first all agree that if its owner demands it, its delivery to him is required; if he refuses to return it without excuse, it becomes guaranteed, like the usurped object, without disagreement.
The Hanafis according to the school, the Shafi'is according to the school and the Hanbalis hold that the lessee is not required to return the rented object to its owner, for it is a trust in his hand, like the deposit. The Shafi'is in one view and some Hanafis hold that the lessee must return the rented object to its owner, for after completing [the work] he is no longer permitted to withhold it: its return is therefore required of him; if he withholds it after enjoying its benefit, his withholding is without excuse and he guarantees, otherwise he does not.
And if its return is stipulated upon him, it is required of him according to the Shafi'is and according to one Hanbali view (al-Jawhara al-Nira 3/338; Majma' al-Damanat 80 and 83; al-Hindiyya 4/438; al-Hawi al-Kabir 7/440; al-Tanbih 125; Mughni al-Muhtaj 3/409; Nihayat al-Muhtaj 5/352; al-Najm al-Wahhaj 5/372; Kanz al-Raghibin with the gloss of Qalyubi and Umayra 3/196; al-Dibaj 2/481; al-Mughni 5/311; al-Sharh al-Kabir 6/128; al-Mubdi' 5/113; Kashshaf al-Qina' 4/55-56; Matalib Uli al-Nuha 3/696).
The majority of jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to the school, hold that stipulating liability on the lessee is not valid, for he is trustworthy. Contracts indeed have estimated bases and recognized rulings that conditions do not alter, whether in stipulating the lapse of liability or its imposition, like deposits and partnership: not being guaranteed, like contracts, they are not made guaranteed by conditions (al-Hawi al-Kabir 6/253). For the basis of the contract rests on trust; if liability is stipulated in it, that contradicts the cause of its basis, and when a condition contradicts the cause of the contract's basis, its invalidity is required: its basis is one who marries a woman stipulating not to touch her (al-Ma'una 2/124).
They nevertheless differed if liability is stipulated: does the contract thereby corrupt or remain valid, the condition being corrupt? The Hanafis, the Malikis and the Hanbalis in one aspect hold that the hire corrupts if liability is stipulated in it.
The Hanafis say: stipulating liability on the lessee is not valid, for his hand is a hand of trust: the liability condition is therefore not taken into account, its stipulation upon the trustworthy being void according to the fatwa. They say: the hire is corrupted by conditions the contract does not require, as when liability is stipulated upon the trustworthy one (al-Jawhara al-Nira 3/345; al-Bahr al-Ra'iq 7/274; al-Hindiyya 4/442; al-Durr al-Mukhtar with Ibn Abidin's gloss 6/567-568; Majma' al-Damanat 147).
The Malikis say: the lessee is trustworthy, with no liability upon him if he claims loss or perishing, whether it is something that can be taken from him unseen or not, and he swears if he is suspect: it was lost and I was not negligent. If liability is stipulated upon him, the hire contract corrupts, for it is a condition contradicting the contract; if it occurs, he has the like's wage, above or below the named amount.
The place of corruption is that the condition does not lapse before the corruption; otherwise the hire is valid. The lapse here is the expiry of the work: its lapsing during it equals its lapsing before it for granting validity. In sum: it is a condition corrupting the contract so long as it has not lapsed; but if it is discovered after the work, he has the like's wage, and the condition is not acted upon (al-Sharh al-Kabir with al-Dasuqi's gloss 5/370; al-Taj wa-l-Iklil 4/494-495; Sharh Mukhtasar Khalil 7/26; Tathbir al-Mukhtasar 4/574; al-Sawi's gloss 9/31).
The Hanbalis according to the school say: everything that is a trust does not become guaranteed by its stipulation, for what the contract requires is its status of trust: if its guarantee is stipulated, one has committed to guaranteeing what has no cause of guarantee, so it does not bind him, as if the guarantee of the deposit were stipulated, or the guarantee of wealth in its owner's hand.
It is reported of Ahmad that this was mentioned to him and he said: "The believers are bound by their conditions," which indicates the negation of guarantee by its stipulation; and the first view is the apparent meaning of the school. If liability is stipulated upon him, there are two aspects, based on the corrupt conditions in sale: one, the hire corrupts; the other, it does not corrupt (al-Mughni 5/312-313; al-Sharh al-Kabir 6/366-367; al-Mubdi' 5/145; al-Insaf 6/113).