Ju'ala: rules and disagreements

This page continues the study of the ju'ala, the contract by which a person, the promiser, undertakes to pay a named reward (ju'l) to whoever performs a specific task, such as returning a runaway slave or lost property to its owner. It gathers the complementary rules of the chapter: denial followed by admission, borrowing to complete a muqarada capital reduced by a loss, the validity conditions of the contract, the status of an invalid ju'ala, disputes between promiser and worker, the nature of the worker's hand, and the causes that dissolve the contract. The positions of the four schools are cited with their classical references.

The adjuration of the capital owner and denial followed by admission

If the worker asks that the capital owner take an oath to establish that he is entitled to the profit whose existence he had already acknowledged, he obtains this adjuration as soon as he alleges a plausible ambiguity. Without an alleged ambiguity, two views are reported on his right to have the oath taken: the first admits it, since his claim remains possible; the second refuses it, because of his prior admission.

If the worker states that a profit arose on the capital and then perished, his word is accepted as soon as it is plausible, for instance in a commercial slump, because he is a trustee. His statement about the loss is therefore admitted, and the oath lies upon him if the owner denies him, again because he is a trustee. Likewise, if he claims to have later covered an earlier loss out of the profit, his word is accepted on account of its plausibility, with an oath upon him if he is denied.

Denial followed by admission

The Hanafis say: if the manager denies the muqarada altogether while the capital owner claims to have handed him funds on that basis, the word is given to the manager, for the owner alleges against him a handover of funds that he denies.

If the manager denies, then acknowledges having received from a man funds placed in muqarada that the man now claims back, after first answering: "You handed me nothing", and then declaring: "Yes, I seek Allah's forgiveness, the Most Great: you did hand me a thousand dirhams in muqarada", he then guarantees the capital, for he is a trustee, and the trustee who denies the trust becomes liable like the ordinary depositary. The muqarada is indeed not a binding contract but a revocable one: the denial amounts to rescission, and once the contract has fallen, the capital remains a guaranteed debt upon him, like a deposit.

If he buys with these funds while in his denial, the purchase is for himself, since he guarantees the capital and the proper regime of the muqarada has disappeared: the mark of the manager is that the capital remains a trust in his hand, and once he becomes liable he is no longer a trustee. His admission after the denial therefore does not lift the liability, the contract having already fallen through the denial and returning only with a new cause.

If he buys after the admission, analogy requires that the purchase be for himself, since he guaranteed the capital through his denial and his act does not acquit him of it. According to istihsan, however, the purchase stands for the muqarada and the liability is lifted, for the order to buy did not fall with the denial: liability does not contradict that order, as shown by the case of the usurper whom the victim orders to sell the usurped property or to buy with it, an order valid although the usurped property remains guaranteed upon the usurper. The purchase is thus for the one who ordered, and it becomes the agent's only after the liability has ended, like the usurper who sells the usurped property on the owner's order and is deemed acquitted of the liability.

If the manager says to the owner: "I returned you the capital, and what is in my hand is profit", then says: "I did not return it, but it perished", he guarantees the capital like the ordinary depositary who claims to have returned the deposit, then acknowledges not having returned it and that the deposit perished.

The manager's loss and borrowing to complete the capital

If the manager claims that the capital suffered a loss while the owner asserts: "You made a profit rather", and the two settle on the basis of the capital alone, such a settlement is not valid.

The Shafi'is say: if a muqarada is concluded with a man for a thousand, and he manages the sum, loses a hundred of it, so that the capital remaining in his hand is nine hundred, and, fearing that the owner would see the shortfall and take his money back, he borrows a hundred from a third party, adds it to the capital, then presents it complete to the owner hoping that the latter will confirm it in his hand, so as to repay the loan afterwards to its lender; if the owner rescinds the contract and takes back the thousand, the lender cannot claim his hundred out of these funds even if he produces proof. The worker had indeed become owner of the sum through the loan, then that ownership passed to the capital owner, so that the hundred is as if it had perished in the worker's hand, and the lender's right remains a debt upon the worker's liability.

Al-Mutawalli, however, transmitted from al-Shafi'i, from Ibn al-Qasim, Malik's companion, that the lender may recover his hundred from the capital owner. Al-Shafi'i (may Allah have mercy on him) rejected this as an error: the worker became owner of the sum through the loan, acknowledged that the whole capital is the owner's right and handed it over to him; his claim is therefore not admitted, and the lender, who gave nothing to the owner, has no claim against him.

The Hanbalis hold the same view. If the worker, having suffered a loss, says to a man: "Lend me what completes the capital so that I may present it to its owner, for I fear he will take it from me if he learns of the loss", and the man lends, then the worker presents the funds saying: "This is your capital", and the owner takes them, the latter keeps them. The worker's retraction of his admission is not admitted, and the lender's testimony in his favor is not accepted, for he seeks a benefit for himself in it; nor may he claim against the capital owner, the worker having become owner through the loan and then having handed the funds to the owner. The lender may resort only against the worker.

The condition of recovering the thing itself and the unknown reward

The Malikis require, for the validity of the ju'ala, that the recovery of the thing itself not be stipulated; if such a condition is laid down, the contract is void, the condition of recovery being harmful even if no recovery takes place in practice. The reward indeed oscillates between the price of the runaway slave, if the worker finds him and hands him to his master, and the sum advanced on loan (salaf), if he does not hand him over, because he does not find him at all or finds him and lets him flee on the way. As for advancing the reward without condition, it is permitted and does not invalidate the contract.

Ignorance of the amount of the reward voids the ju'ala according to the majority of jurists, Malikis, Shafi'is and Hanbalis, for the ju'ala is analogous to hire and the reward to the wage, as was explained earlier. The Hanbalis allow, however, in a transmission reported from Ibn Qudama, that the compensation remain unknown without the contract being thereby vitiated. This point has already been set out in detail.

The status of an invalid ju'ala

The jurists asked: if the ju'ala is void for having lost a condition, or if a corrupt condition was stipulated, and the worker nevertheless worked, is he owed the wage of the like or the reward of the like?

The Shafi'is, the Hanbalis and the Malikis according to one opinion hold that wherever the ju'ala has become void, or a corrupt reward was stipulated, the worker who acted earns the wage of the like, as in hire; if he did not work, he receives nothing. If the workers are two or three, one stipulated with a void ju'ala and the other two with a sound one, the one whose ju'ala was sound receives a third of the sum named to him, and the one whose ju'ala was void receives a third of the wage of the like of his work, by regard for the fact that he works alone.

The Malikis, in the best-known opinion, grant in the case of a ju'ala void for loss of condition a reward of the like, if the work is completed, by way of restoration to a sound state, not a hire wage; if the work is not completed, he receives nothing. Such is the famous view.

It has also been said that he receives the wage of the like, restoring him to his sound foundation, namely hire, whose regime he then follows; his right originates in the fact that the contracting parties of the ju'ala stipulated what the parties of a hire stipulate.

An exception must be made for the ju'ala concluded with an absolute reward, whether the work is completed or not: for instance if one says to the worker: "If you bring me my runaway slave you will have such and such; if you do not bring him you will have such and such, or your upkeep will be mine". The worker then receives the wage of the like even if he does not bring the slave, for the convention departs from the true nature of the ju'ala, whose rule is that there is no reward except upon completion of the work: a counter-value having been fixed in both cases, the contract is no longer a genuine ju'ala.

Disagreement over the amount of the reward

In the two situations of the man accustomed to this search, the reward is the equivalent of the thing brought back if the worker's habit is to bring runaway slaves or other property: whoever is accustomed to bringing back lost property receives, if he brings one, a reward of the like when the owner has named nothing; if the owner has named a sum, he receives what was named.

The jurists then asked: if, after the work is done and the thing delivered, the promiser says: "Five", and the worker answers: "Ten rather", which solution applies?

The Hanbalis, in the madhhab, give the word to the promiser, for he is the denier, and the principle is the innocence of whoever acknowledged nothing. The Shafi'is and the Hanbalis, according to another opinion, have the two take mutual oaths, as in a sale when buyer and seller dispute over the goods after their perdition; the worker then deserves the wage of the like.

The Malikis say: if the two dispute after the completion of the work over the amount of the reward and neither of them takes an oath, they take mutual oaths and the worker is returned to the reward of the like. If one of the two takes an oath, his word stands; if they take oaths together, as when it is the worker who takes the oath, the word is his, both being referred to the oath according to what they did, and judgment is given to the one who swore against the one who abstained.

Disputes over distance, the object of the engagement and the return

A disagreement between the two parties arising before the work has no effect, each remaining free to abandon it.

The disagreement over distance

The Hanbalis say: if the promiser and the worker dispute over the distance, the promiser saying: "I set it for whoever brings it back to me from two postal stages", and the worker: "From one stage rather", the word is given to the promiser, for he is the denier, and the principle is his innocence of what he did not acknowledge.

The disagreement over the precise object of the engagement

If the worker says: "You stipulated the compensation for the return of this slave", and the promiser answers: "I stipulated it rather for the return of another", with no proof, the word is given to the promiser, the owner of the property, according to the Shafi'is and the Hanbalis, for the principle is the innocence of his undertaking.

Denial of the initiative of the return

If the owner says to the worker: "You did not bring him back, the slave returned by himself", or: "Someone other than you brought him back", the word is given to the owner according to the Shafi'is, for the principle is the absence of condition and of return.

Disagreement over hearing the authorization

The Shafi'is say: if the owner and the worker dispute over the call having reached him, the worker asserting that the call authorizing the return of the lost property reached him and the owner replying: "It did not reach you"; or if they dispute over hearing the call, the worker saying: "I heard you say: whoever returns my lost property shall have such and such", and the owner: "You brought it without hearing it", the word is given to the worker with his oath.

The Malikis say: if the owner proclaims: "Whoever brings me my runaway slave or my stray camel shall have such and such", and a man who did not hear his words brings the animal, but seeking lost property and runaway slaves is his habit, he is entitled to a reward of the like, whether that like equals the named sum, falls short of it or exceeds it.

As for one who did not hear the owner's words and whose habit is not to seek lost property and runaway slaves, he has no right to the reward; there is due to him only the upkeep of the runaway slave, that is, what he spent on him in food, transport and clothing, excluding his own upkeep and that of his mount, during the time of the retrieval: these expenses are due in return for bringing the slave.

The worker's hand: trust or liability?

The Shafi'is say: the worker's hand over what is in it, until he returns it, is a hand of trust. If he loses it through negligence, by squandering it for instance, he guarantees for his shortcoming; if he loses it without negligence, by leaving it with the judge for instance, he does not guarantee. Spending on the property during the period of return is a voluntary act, unless the judge permits him, or the worker has the spending attested by witnesses at the time, in case of disappearance, so as to be able to claim it afterwards.

The Hanbalis add: whoever takes the runaway slave, or any other lost property, in order to return it to its owner, holds it in trust; if it perishes before he can return it, without negligence or excess, no liability falls upon him, for he acted well in taking it.

Detaining the thing while awaiting the reward

The Shafi'is and the Hanbalis state that the worker may not detain the runaway slave or the lost property against the owner in order to receive the reward, for the right is acquired through the handover and no detention is permitted before the right is acquired. Nor may he detain it in order to recover what he spent on it with the owner's permission; if he detains it and it perishes, he guarantees.

What dissolves the ju'ala

The ju'ala is dissolved by several causes: rescission, already dealt with; the death of either party; and the madness or fainting of either party.

Death

The Shafi'is say: the ju'ala is dissolved by the death of either contracting party. If the owner dies after the worker has begun the work, the latter completes it and hands it to the heirs of the promiser: he receives the share corresponding to what he accomplished during the promiser's lifetime out of the named sum, and nothing for what he did after the owner's death, the heirs being bound by nothing in his regard, whether he knew of the promiser's death or not.

If the worker dies in the course of the work and his heir completes the work and returns it to the owner, the heir receives the share of what his predecessor accomplished before his death out of the reward stipulated in the contract, provided the worker was a designated person. If the worker was not designated, whoever completes the work, heir or other, receives the whole of the stipulated reward.

As for the Malikis, Ibn Rushd (may Allah have mercy on him) says: if the promiser dies before the beneficiary undertakes the work, his heirs remain bound and may not prevent him from it, according to the view of Ibn Habib and the apparent meaning of the transmission of 'Isa from Ibn al-Qasim; likewise if he dies after the work has begun, according to the transmission of Ali ibn Ziyad and Ashhab from Malik (may Allah have mercy on him). And if the beneficiary dies, after beginning the work or before, on either view, his heirs stand in his place, for the promiser could not have prevented them from performing the work.

Asbagh, however, transmitted from Ibn al-Qasim a contrary view for the ju'ala concluded for the collection of debts: the death of the beneficiary is there likened to the death of the muqarada manager. If he has begun the work, his heirs stand in his place if they are trustworthy; if he has not begun the work and has collected nothing, his heirs have no right. And he says: the reward falls away with the death of the promiser, whether he dies before or after the beneficiary has begun the work; it is therefore not carried here to the pattern of the qirad nor to that of the reward in favor of the promiser, on account of the contractual bond binding the beneficiary, or the beginning of his work, according to the divergence set out before. As for the stipulation made for the beneficiary's death, in view of the trust owed to the heirs, it is sound and admits no divergence, for this is a situation in which trust is fitting.

Ibn Rushd reports in "Al-Bayan wa-l-Tahsil" that Asbagh said: I asked Ibn al-Qasim about a man who said to another: "Collect what is owed to me by so-and-so, and it amounts to such and such; of whatever you collect, a third or a half is yours". The beneficiary then dies, after collecting part of the money, or without collecting anything; or the promiser dies, or the debtor dies. Ibn al-Qasim replied: if the one for whom the reward was fixed dies after having worked, his heirs stand in his place like their father, if they are trustworthy, as long as the creditor lives. If he dies before collecting anything, his heirs have no right, like the qirad when the deceased undertook nothing; and so it is likewise in this case. And if the owner of the property, the promiser, dies, neither can the beneficiary complete what remains, nor his heirs if he dies in turn: it was an obligation that bound the promiser only as long as he lived; at his death the property passes to others and what had been promised falls away, for it was not a binding hire, and the beneficiary could withdraw whenever he wished.

The proof is that if the owner of the property dies leaving debts that engulf his estate, and the beneficiary wishes to pursue the collection as it stands, the creditors refuse, saying: "This property has become ours, you may not deduct from our wealth what was promised to you"; so it is for them. Likewise, if the promiser goes bankrupt, the worker's reward falls, meaning that of the earlier beneficiary, for the part not yet collected: it goes to his creditors to be divided, and likewise the heirs in their capacity, for the property passed to the owner's heirs.

He then says: if the debtor dies while the beneficiary has already collected part of the claim before dying, or if the one owing the reward dies, the beneficiary remains upon his reward as fixed by the creditor and pursues the collection if he wishes, whether he had already collected something or not. His case is like that of the creditor, or the other creditors of the deceased debtor, wishing to have him declared bankrupt: the beneficiary remains upon his reward. Death and bankruptcy are one and the same here, and the worker's heirs, if they are trustworthy, stand in his place, like the qirad. Such is the saying of Asbagh in its entirety, followed by imitation and istihsan, with, in part of it, a measure of criticism and open departure from qiyas and speculation.

Muhammad ibn Rushd comments: the distinction, in the beneficiary's death, is between dying before collecting anything, that is, before working at the collection, and dying after having worked at it, even if he collected nothing afterwards. His analogy with the qirad is sound, on the view that the promiser is bound by the reward from the contract itself, even if the beneficiary has not begun the work: the heirs of the beneficiary, if they are trustworthy or bring a trustworthy man, may stand in their predecessor's place.

As for his statement that, if the owner of the property dies, the beneficiary cannot complete what remains, nor his heirs after him, the meaning, in my view, applies to the case where he had collected part and part remains: what he collected has become his due, and he has not lost his toil altogether. This is precisely the case in which Asbagh said: it is istihsan, with a measure of criticism and departure from the apparent qiyas. And so it is: if he collected part, the promiser became bound by the reward; being bound, it does not fall away at his death, and his heirs are bound by it according to apparent reasoning and qiyas upon the foundation.

But if the promiser dies after the beneficiary has worked at the seeking, the investigation and the action, without having yet collected anything, it is not admissible that his right be annihilated by the promiser's death, so that his toil be lost in vain; rather he must benefit from it, or his heirs if he dies: the succession operates in the collection of what he had stood for and whose collection he had overseen, without divergence. The same applies if the reward concerns something other than the collection of debts, such as a reward fixed for seeking a runaway slave or digging a well: if the promiser dies after the beneficiary has dug part of the well or set out in search of the runaway, his heirs remain bound by it, without divergence.

If, however, the reward is of the kind of harvest or gleaning: "of what you harvest from my field, or glean from my olive trees, half or a third is yours", and the promiser dies after a partial harvest or a partial gleaning, the beneficiary may not continue harvesting or gleaning without the consent of the promiser's heirs, without divergence; for what he harvested or gleaned has become his due, and what he neither harvested nor gleaned involves no work of his that would be lost by his withdrawal. Note, then, that the rulings of these three questions diverge according to the divergence of their objects: for the reward of collection, the promiser's heirs may, on istihsan and not on qiyas, prevent the beneficiary from continuing the collection; for the reward of digging, of seeking the runaway and their like, they may not, neither on istihsan nor on qiyas; for the reward of harvest and gleaning, they may prevent him, on istihsan as on qiyas.

His statement that the reward of collection is not rescinded either by the debtor's death or by his bankruptcy is sound, and no other view has any place here; Allah grants success.

The Hanbalis say: if the promiser dies before receiving the runaway slave, the worker receives his reward as legally estimated, from his master's estate, like other rights and debts, provided the master's death was not the cause of the slave's emancipation. If it is as with the slave emancipated by testamentary disposition (tadbir), or the umm walad, the worker has nothing, for the work was not completed, the emancipated one no longer being called a runaway. Likewise he has nothing over the other returned properties if the promiser dies before receiving them; there is due to him only the upkeep, which he takes from the estate in both cases.

Madness and fainting

The Shafi'is say: the ju'ala is dissolved by the madness or fainting of either party. Shaykh Zakariyya al-Ansari specifies: the ju'ala is dissolved by the death, the madness or the fainting of one of the two contracting parties; if the owner dies after the work has begun, the worker hands the thing to his heirs (in one copy: to his heir), and his share is due, that is, the share of what he accomplished during the promiser's lifetime out of the named sum. If the worker dies and his heir returns the thing, the latter is entitled to the share as well, says al-Mawardi.