Islamic Fiqh > Companies and leases > The company in Islam: legitimacy and categories
The company in Islam: its legitimacy in the Quran and Sunna, its categories (inan, mufawada, bodies, faces), the status of mudaraba, musaqat, muzaraa, lease and juala.
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Updated on 25 September 2026 at 6:57 PM
This chapter gathers the general rules of fiqh on partnership and hire, together with the contracts related to them. Partnership (shirka) is lawful by the Quran, the Sunna and consensus, but the schools differ over its types and their conditions. Around it revolve the muqarada (investment partnership), musaqat (the irrigation of trees), muzara'a (sharecropping), hire (ijara), ju'ala (a reward promised to whoever performs an unknown task) and agency (wakala). For each of them, the positions of the four schools are reported with their textual and rational proofs.
The expression "two or more" refers to generality, not to determination, as when two or more persons own land without any of their shares being defined in it (Rawdat al-Talibin 3/473; Mughni al-Muhtaj 3/183; al-Najm al-Wahhaj 5/7; al-Dibaj 2/295).
The Hanbalis say: partnership is the coming together of two persons in a right or in a disposition; the first is partnership in ownership or in a right, the second is partnership of contracts, and it is this second one that is meant here (al-Mughni 5/3; Sharh al-Zarkashi 2/143; al-Insaf 5/407; Kashshaf al-Qina 3/580).
The lawfulness of partnership: it is established by the Book, the Sunna and consensus.
As for the Book: the saying of Allah:
"There are indeed many partners who wrong one another, except those who believe and do righteous deeds, and few are they"
Surah Sad, 24
"partners" (al-khulata') meaning the associates. And His saying:
"then they are partners in one third"
Surah An-Nisa, 12
And His saying:
"As for the ship, it belonged to poor people working at sea"
Surah Al-Kahf, 79
and by necessity they were partners, either in its ownership itself, or in its benefit through hiring or loan for use.
As for the Sunna: the saying of the Prophet (peace and blessings of Allah be upon him):
Allah the Most High says: "I am the third of the two partners as long as neither of them betrays the other; when one of them betrays the other, I depart from between the two of them", that is, blessing is withdrawn from their wealth.Weak hadith: narrated by Abu Dawud (3383), al-Hakim (2/60), al-Bayhaqi (6/78), al-Daraqutni (3/35) and al-Khatib (4/316)
Zayd said:
"Al-Bara and I were partners; we bought silver with cash and a used garment..."Authentic hadith: narrated by al-Bukhari (2061) and Ahmad (19307), the wording being his
Saib ibn Abi Saib used to trade with the Messenger of Allah before Islam; on the day of the Conquest he came to him and the Prophet said:
"Welcome, my brother and my partner, you who never disputed and were never disputed with. O Saib, you used to do deeds of the days of ignorance that were not accepted from you, and today they are accepted from you; you had wealth and family ties."Narrated by Imam Ahmad (15544), al-Hakim in al-Mustadrak (2/69) and al-Bayhaqi (6/78)
In Abu Dawud's wording, he said:
"I came to the Prophet and the people began praising me and mentioning me; the Messenger of Allah said: 'I know you best.' I said: 'You have spoken truly, may my father and mother be your ransom; you were my partner, and what a good partner you were: you never disputed and were never disputed with.'"Authentic hadith: narrated by Abu Dawud (4838)
As for consensus: a number of people of knowledge have transmitted the consensus on the lawfulness of partnership in general, even though they differed over some of its types, as will be detailed later, Allah willing.
Imam Ibn Qudama said: the Muslims have agreed on the lawfulness of partnership in general (al-Mughni 5/3). Al-Zarkashi said: it is lawful by consensus (Sharh al-Zarkashi 2/143). The vizier Ibn Hubayra said: they agreed that partnership is lawful for every kind of disposition whatsoever (al-Ifsah 1/444). Al-Amrani said: as for the consensus on the lawfulness of partnership, no scholar has opposed its lawfulness (al-Bayan 6/361). Al-Mawsili said: the Messenger of Allah was sent while the people were already transacting with it and he did not reject it for them; they transacted with it until our day without objection: that was therefore a consensus (al-Ikhtiyar 3/13).
Partnership, in origin, is of two categories: partnership in property and partnership in contracts.
The first category: partnership in property. It is the coming together in a right or in ownership; it is of two kinds: an involuntary kind (jabriyya) and a voluntary kind (ikhtiyariyya):
The Hanafis say: this partnership in property is of two types: a type established by the act of the two partners, and a type established without their act.
As for the type established by their act: such as when both buy a thing, or it is given to them as a gift, a bequest or charity and they accept it: the buyer, the donee, the legatee and the recipient of the charity become co-owners in a partnership of ownership. The ruling of this type is that either of the two may sell his share without his partner's permission, since each one's ownership stands in his share in every respect.
As for the type established without their act: inheritance: if they inherit a thing, it becomes common property between them in a partnership of ownership. The ruling of this type is that neither may dispose of the other's share to a third party without his permission, because this type does not entail agency; each one is, with regard to his companion's share, like a stranger, since disposing of another's property is lawful only with permission or guardianship (al-Jawhara al-Nayyira 3/420; al-Ikhtiyar 3/14; Tabyin al-Haqa'iq 3/313; Majma' al-Anhur 2/543; al-Lubab 1/523; Mukhtasar al-Wiqaya 2/179).
Al-Qarafi, the Maliki, said: when two persons are partners in an animal, by inheritance or otherwise, neither may dispose of it without his partner's permission. If he sells his share and delivers the whole to the buyer without his partner's permission, the rules entail that the partner is liable: our shaykhs and the Shafi'is issued this fatwa, because his best situation is to be a trustee like a depositary with him; when a stranger's hand is placed on the property, he becomes liable for transgression. If it is said: the sale should be invalid since he is incapable of lawful delivery, we answer: if his partner is present, he delivers the goods to him and the settlement takes place between them; if he is absent, the matter is referred to the judge who authorizes him to sell, for it is the judge's prerogative to place the absent person's property under his hand; the sale is then valid. I have seen no transmitted text on this, but it is what the rules require (al-Dhakhira 8/66; al-Bahja fi Sharh al-Tuhfa 2/255-256).
The second category: partnership of contracts, the one defined previously: it is the coming together in a disposition; it is formed by choice with the purpose of disposing and earning profits, and it is the one intended in this chapter. The partnership of contracts is of four types:
The jurists gave several explanations of the name 'inan given to this partnership:
In the terminology of the Hanafis: it is that each partner shares with his companion in some of the properties, not all of them, each being the agent of the other in disposing of the type of trade specified, or of all trade if they specify it or leave it general, and they state the amount of profit (Tuhfat al-Fuqaha 3/7; al-Mabsut 11/152; Mukhtasar al-Wiqaya 2/181; Sharh Fath al-Qadir 6/176).
The Malikis say: each of the two stipulates upon his companion the negation of independent authority over disposal; the disposal of each depends on the permission of the other: that is the 'inan partnership. If one of them disposes without permission, the other may revoke it, and he is liable if what he disposed of perishes; the name is taken from the bit of the mount, as if each of the two held the bit of his companion (al-Sharh al-Kabir with al-Dasuqi 5/21; Sharh Mukhtasar Khalil 6/49; Tahrir al-Mukhtasar 4/253; al-Sharh al-Saghir 8/10).
According to the Shafi'is: the two join in a capital in order to trade, each contributing a capital of the same kind and description as that of his companion, and they mix the two capitals. In another formulation: each contributes a capital like that of his companion, they mix them so that they become indistinguishable, and each authorizes the other to trade with the capital in whatever goods he sees fit, the profit being shared between them in proportion to the two capitals, and the loss likewise (al-Bayan 6/365; Mughni al-Muhtaj 3/184-185; Nihayat al-Muhtaj 5/5; al-Dibaj 2/296; al-Hawi al-Kabir 6/473; al-Mawardi's al-Iqna' 107).
The Hanbalis say: two persons or more join in a capital in order to trade, the profit being shared between them according to their agreement; or two persons or more contribute their capitals, one of them working, on condition that the worker's share of the profit exceeds the profit of his own capital, the surplus corresponding to his work in his partner's capital. If his companion stipulates for him a profit equal to the worker's capital, that is an invalid ibda' (a guaranteed form of commandite), for he worked in another's capital without compensation; if he stipulates for him less than the profit of his capital, it is likewise invalid, for he takes a portion of the profit of his companion's capital without work; but the disposition is valid by the generality of the permission: he receives the profit of his capital, with no fee for his work, since it is gratuitous (Manar al-Sabil 2/178-179; Kashshaf al-Qina 3/581; al-Rawd al-Murbi' 2/68-69).
The Prophet (peace and blessings of Allah be upon him) approved the people upon this ruling, neither forbidding them nor rejecting it from them: the approval (taqrir) is one of the forms of the Sunna. These contracts were legislated for the interests of Allah's servants and for their established need to grow wealth: this type is a lawful path to growth; it moreover comprises agency (wakala), which is lawful by consensus (Bada'i' al-Sana'i' 6/58).
Ibn Rushd said: partnership, in general, is, among the jurists of the regions, of four types: the 'inan partnership, the partnership of persons (abdan), the mufawada partnership and the wujuh partnership; only one of them is unanimously agreed upon: the 'inan partnership (Bidayat al-Mujtahid 2/189). Ibn Qudama said: the 'inan partnership, which consists in two men combining their capitals to work in them with their own persons, the profit being shared, is lawful by consensus (al-Mughni 5/10); a great number of other scholars have transmitted the consensus on its lawfulness.
The pillars of partnership according to the majority (jumhur) are: the formula (sigha), the two contracting parties, the subject of the contract, which is the capital, and the work. According to the Hanafis, its only pillar is offer and acceptance: that one say: "I enter into partnership with you in such a thing", and the other say: "I accept", for it is a contract, and its pillar of offer and acceptance must be performed, by saying for example: "I enter into partnership with you in such a fabric or the like, or in all manner of trade".
Its condition: that it concern what admits of agency, so that each of the two is, within the partnership, a principal in his own share and the agent of his companion in the other half: the purchase becomes common property, and the earnings likewise according to the partnership. It is therefore not lawful to enter into partnership in the gathering of wood or grass and the like among free goods (mubaha), for agency is not valid therein: what one earns there is exclusively one's own (al-Hidaya 3/3 and 3/7; al-Jawhara al-Nayyira 3/421 and 3/428; Tabyin al-Haqa'iq 3/313; al-Lubab 1/527; Sharh Fath al-Qadir 6/154; Durrar al-Hukam 7/469).
The muqarada bears this name according to the usage of the people of Iraq, while the people of the Hijaz call the muqarada contract qirad or muqarada. The Malikis and Shafi'is call it qirad; the Hanafis and Hanbalis call it mudaraba. It is also called mu'amala (transaction).
In the terminology of the jurists, the definitions of muqarada or qirad are close, and their content is: that a man hand over a capital to another so that he trades with it, buys and sells seeking Allah's bounty, the profit being shared between them according to an undivided share upon which they agree, small or large, as we shall explain.
The Hanafis say: it is the handing over of a capital to one who disposes of it, so that the profit is shared between them according to what they stipulated (al-'Inaya, Sharh al-Hidaya 12/128). It has been said: a contract between two persons: the capital belongs to one, the trading with it to the other, and the profit is shared between them (al-Jawhara al-Nayyira 3/441; Mukhtasar al-Wiqaya 2/187).
The Malikis say: qirad is the handing over by an owner of a capital in coined, circulating cash (not a debt owed or deferred upon someone), known in amount and description, to one who will trade with it, for a common, specified share of its profit, be it small or great, by a formula indicating that, even if they are only two, with the consent of the other; no particular wording is required, as in sale and hire (al-Sharh al-Saghir with al-Sawi's hashiya 8/384).
It has been said: it is a delegation to trade with coined, circulating cash handed over by its owner to the worker for a common share of its profit, that is, of the profit of that capital: it is not lawful to work for a share of the profit of another capital (al-Sharh al-Kabir with al-Dasuqi 5/280; Tahrir al-Mukhtasar 4/504; Sharh Mukhtasar Khalil 6/203; Mawahib al-Jalil 7/339). It has also been said: it is enabling one to trade with a capital for a share of its profit, without the wording of hire (al-Mukhtasar al-Fiqhi 11/345; al-Taj wa-l-Iklil 4/409).
The Shafi'is say: it is that the owner hand over to the worker a capital so that the worker trades with it, the profit being shared between them according to the stipulation, in equality or in preference. From the word "hand over" it follows that qirad is not valid upon a benefit, such as the dwelling of a house, nor upon a debt, whether owed by the worker or by another (Rawdat al-Talibin 3/739; Mughni al-Muhtaj 3/341; al-Najm al-Wahhaj 5/259).
The Hanbalis say: muqarada is the handing over of a capital, or of its equivalent in meaning (that is, what is equivalent to handing over, such as a deposit, a loan for use or a usurpation), when its owner says to the one holding it: "Trade with it in such a thing": a specified asset of known amount, to one or more who will trade with it, for a known share of its profit for him; or the share stipulated for the worker and for a third party (even a father or a son), with work by the third party, by saying for example: "Work with this capital for a third of the profit for you and for Zayd, on condition that he works with you"; for this is equivalent to his saying: "Work both of you with this capital for a third" (Kashshaf al-Qina 3/594-595; Sharh Muntaha al-Iradat 3/563-564; al-Rawd al-Murbi' 2/72).
No authentic hadith, rising up to the Prophet (peace and blessings of Allah be upon him), has been established concerning the muqarada; but the people of knowledge agree on the lawfulness of muqarada or qirad, and a great number of them have transmitted the consensus on this point.
Abu Bakr Ibn al-Mundhir said: we find no mention of qirad in the Book of Allah nor in the Sunna of the Prophet of Allah; we found the people of knowledge agreeing to permit qirad with dinars and dirhams: it therefore behooves us, if the matter is so, to permit what they agreed upon and to suspend judgment on what they differed over. Reports from Umar ibn al-Khattab, Uthman ibn Affan and Ali ibn Abi Talib (may Allah be pleased with them) indicate the validity of the muqarada (al-Ishraf 6/207).
Imam al-Nawawi said: the proof of its validity, that is, of qirad, is the consensus of the Companions (may Allah be pleased with them) (Rawdat al-Talibin 3/739). Imam Ibn Hazm said: every chapter of fiqh, not one is excepted, has a root in the Quran and the Sunna that we know, praise be to Allah, except qirad: we found absolutely no root for it in either; but it is a sound, pure consensus; what is certain is that qirad existed in the era of the Prophet, that he knew of it and approved it: otherwise it would not have been lawful (Maratib al-Ijma' p. 91).
He also said: qirad existed in the Jahiliyya; the Quraysh were a people of trade, with no other means of livelihood; among them were the elder unable to travel, the woman, the child and the orphan; they, along with the busy and the sick, would hand over capital in muqarada to one who would trade with it for a named share of the profit; the Messenger of Allah approved this in Islam, and the Muslims practiced it in an established manner, without dispute; had there been a dispute over it, it would have been reported, for the transmission was continuous, from all after all, back to the era of the Messenger of Allah, who was informed of it; he himself (peace and blessings of Allah be upon him) went out on a qirad with the capital of Khadija (may Allah be pleased with her) (al-Muhalla 8/247).
Imam al-Juwayni said: this transaction, that is, qirad, is valid by the agreement of the scholars in general... then he said: it is not possible for a consensus to have a basis that would require deep investigation and minute examination; a consensus must issue from a root, and it is improbable that it should be concealed in a continuous custom: there is no explanation other than the certainty that they were familiar with this transaction in the era of the Messenger of Allah, widespread among the merchants, with a legally confirmed approval; its prevalence among the people being too manifest to require the reporting of chains: the consensus proceeded from this (Nihayat al-Matlab 7/437 and 439).
Ibn al-Qayyim said: the Muslims have agreed on the lawfulness of the muqarada, which is the handing over of one's capital to one who works with it for a share of its profit: every asset whose benefit grows through work, its owner may hand it over to one who will work with it for a share of its profit (Ighathat al-Lahfan 2/43). Ibn Hubayra said: they agreed on the lawfulness of the muqarada, which is the qirad (al-Ifsah 1/449).
Some jurists, the Hanafis and some Shafi'is such as al-Mawardi, argued for the lawfulness of the muqarada from the Book and the Sunna.
As for the Book: the saying of Allah:
"and others traveling through the land seeking of Allah's bounty"
Surah Al-Muzzammil, 20
and the muqarid travels through the land seeking Allah's bounty. And His saying:
"And when the prayer is ended, disperse in the land and seek of Allah's bounty"
Surah Al-Jumu'a, 10
and the Most High says:
"It is no sin for you that you seek of the bounty of your Lord"
Surah Al-Baqara, 198
As for the Sunna: what has been narrated from Ibn Abbas: "Al-Abbas ibn Abd al-Muttalib, when handing over capital in muqarada, stipulated upon his manager that he not travel with it by sea, nor descend with it into a valley, nor purchase with it livestock ('wet livers', that is, living animals); if he did so, he would be liable. He referred his condition to the Messenger of Allah, and he approved it" (narrated by al-Daraqutni 3081 and al-Bayhaqi 11611; al-Haythami said in Majma' al-Zawa'id 4/161: al-Tabarani narrated it in al-Awsat, and it contains Abu al-Jarud al-A'ma, an abandoned liar).
The Messenger of Allah (peace and blessings of Allah be upon him) was likewise sent while the people were contracting muqarada and he did not reject it for them: that is an approval, which is one of the forms of the Sunna.
Al-Kasani said: as for the consensus, it has been narrated from a number of the Companions (may Allah be pleased with them) that they handed over the orphan's capital in muqarada: among them our master Umar, our master Uthman, our master Ali, Abdallah ibn Mas'ud, Abdallah ibn Umar, Ubaydallah ibn Amr and our mistress Aisha (may Allah be pleased with them); and it has not been reported that a single one of their peers rejected it from them: what is of this kind constitutes a consensus. On this model the people have acted from the Messenger of Allah to our day, in all eras, without objection from anyone. The consensus of the people of every era is a proof that makes qiyas be set aside; and a kind of analogy also indicates its lawfulness: the people need the muqarada contract, for a man may have capital without knowing how to trade, and know how to trade without capital: the legislation of this contract answers both needs; Allah legislated contracts only for the interests of the servants and the fulfillment of their needs (Bada'i' al-Sana'i' 6/79).
The scholars have also argued from what Malik and al-Shafi'i narrated from Zayd ibn Aslam from his father: "Abdallah and Ubaydallah, the two sons of Umar ibn al-Khattab, set out with an army towards Iraq; on their return they passed by Abu Musa al-Ash'ari, governor of Basra, who welcomed them warmly; then he said: 'I wish I could arrange for you two something more profitable, and I would gladly do it; here is a capital from the capital of Allah that I intend to send to the Commander of the Believers: I advance it to you in muqarada; you buy merchandise of Iraq, sell it in Medina, and hand back the principal to the Commander of the Believers, the profit being yours.' They said: 'We wish that.' He did so, and wrote to Umar ibn al-Khattab to take the capital from them. They sold and made profit; when they handed it over to Umar, he said: 'Has the whole army advanced like you two did?' They answered: 'No.' Umar ibn al-Khattab said: 'Sons of the Commander of the Believers, he advanced it to you: hand back the capital and its profit.' Abdallah kept silent, but Ubaydallah objected: 'It does not behoove you, O Commander of the Believers, to do this: had this capital diminished or perished, we would have borne it.' Umar said: 'Hand it over.' Abdallah kept silent and Ubaydallah persisted. A man of Umar's council said: 'O Commander of the Believers, treat it as a qirad.' Umar said: 'I have treated it as a qirad.' Umar took the principal and half the profit, and Abdallah and Ubaydallah, the two sons of Umar ibn al-Khattab, took half the profit" (narrated by Malik in the Muwatta 2/687, no. 1372, and al-Shafi'i in al-Umm 4/33-34; al-Hafiz Ibn Hajar said in Talkhis al-Habir 3/57: its chain is authentic).
The proof drawn from it is the man's word to Umar (may Allah be pleased with him): "treat it as a qirad"; and neither Umar nor anyone else rejected the qirad (al-Bayan 7/184). Al-Juwayni said: some said that the basis of the consensus on qirad is the hadith of the two sons of Umar... the scholars discussed the word of Abd al-Rahman: "treat it as a qirad?"; they said: the approval and the application of his ruling indicate that the qirad was known among them.
Ibn Rushd said: the qirad existed in the Jahiliyya and was approved in Islam, for necessity called for it: the people needed to grow their wealth through trade, and not everyone is capable of it by himself, so that he had to delegate; he might find no one to work for a wage, the custom of the people being the qirad: the license was granted for this necessity, and this contract was drawn out, by this cause, from undetermined hire, as license was granted in musaqat, the 'ariya sale, partnership in foodstuffs and tawliya; this cause became a sunna: there is therefore no dispute in the community over its lawfulness in general, even though they differed over many of its conditions and rulings; the Companions and the early generations practiced it, and those after them followed suit (al-Muqaddimat al-Mumahhadat 3/6; Mawahib al-Jalil 7/340). The Shafi'is drew an analogy between qirad and musaqat, which is permitted for need: the owner of the palms may be unable to tend them or have no time for them, and one able to work may own nothing; the same meaning exists in the qirad. It is, as has been said, a license outside the analogy of hires, as musaqat left the sale of what has not yet been created, hawala the sale of debt for debt, and 'ariya the muzabana (Mughni al-Muhtaj 3/341).
Ibn Taymiyya and Ibn al-Qayyim, on the contrary, held that the muqarada accords with analogy and does not contradict it, for it belongs to the genus of partnerships, not to the genus of hires.
Ibn Taymiyya said: those who said that the muqarada, the musaqat and the muzara'a contradict analogy assumed that these contracts belong to the genus of hire, because it is work for compensation, and hire requires knowledge of the compensation and the compensated; seeing that the work in these contracts is not determined and the profit not determined, they said they contradict analogy: that is their error, for these contracts belong to the genus of partnerships, not to the genus of particular exchanges in which knowledge of the two compensations is required; partnerships are a genus other than exchange, even if an admixture of exchange is found in them, just as profit-sharing is a genus other than the particular exchange. The clarification of this is that work aimed at for money is of three kinds; one: that the work be intended, known and capable of being delivered: that is the binding hire (al-ijara al-lazima).
The jurists differed over the ruling of musaqat: is it lawful or invalid? The majority of the jurists, the Malikis, Shafi'is and Hanbalis, along with the two Hanafi companions Abu Yusuf and Muhammad (the fatwa being upon their view in the school), held the lawfulness of musaqat, arguing from the Sunna, the consensus of the Companions, analogy and need.
As for the Sunna: the hadith of Ibn Umar (may Allah be pleased with him):
"The Prophet contracted with the people of Khaybar for half of what it produced of fruit or crops."Narrated by al-Bukhari (2203) and Muslim (1551)
And from Ibn Abbas (may Allah be pleased with him):
"The Messenger of Allah conquered Khaybar and stipulated for himself the land, together with every yellow (gold) and white (silver). The people of Khaybar said: we know the land better than you: give it to us for half the fruit, for you and for us. He granted them that. When the time came for cutting the palm fronds, he sent them Abdallah ibn Rawaha, who estimated the harvest by the method that the people of Medina call al-khars. He said: it amounts to such and such. They said: you have overestimated, O Ibn Rawaha. He said: I may take the estimation and give you half of what I have said. They said: this is the justice upon which heaven and earth stand; we are content to take it according to your word."Hasan and authentic hadith: narrated by Abu Dawud (3410), Ibn Majah (1820) and al-Bayhaqi in al-Kubra (11408)
From Abu al-Zubayr, who heard Jabir ibn Abdallah say:
"Ibn Rawaha estimated it at forty thousand wasq; and it is related that when Ibn Rawaha gave the Jews the choice, they took the fruit, with twenty thousand wasq upon them."Authentic hadith: narrated by Abu Dawud (3415)
As for the consensus of the Companions: Abu Ja'far Muhammad ibn Ali said:
"The Messenger of Allah contracted with the people of Khaybar for half; then Abu Bakr, Umar, Uthman and Ali, then their successors to this day, giving a third or a quarter."Narrated by Ibn Abi Shayba (21231)
And al-Bukhari said: Qays ibn Muslim narrated from Abu Ja'far:
"There is not in Medina a single Emigrant family that does not lease for a third and a quarter; Ali practiced sharecropping, as did Sa'd ibn Malik, Abdallah ibn Mas'ud, Umar ibn Abd al-Aziz, al-Qasim, Urwa, the families of Abu Bakr, of Umar and of Ali..."Mentioned by al-Bukhari in suspended form (mu'allaq) with decisive wording (2/280, chapter on sharecropping for half and the like); narrated by Ibn Abi Shayba (21246)
This is an authentic and famous fact: the Messenger of Allah practiced it until his death, then his rightly guided caliphs until their death, then their successors; no family remained in Medina that did not practice it, and none rejected it: that was therefore a consensus. And the confirmation by the rightly guided caliphs of the Jews of Khaybar in the musaqat that the Prophet had imposed upon them shows clearly that musaqat is a ruling of the Messenger of Allah, firm and not abrogated. The wives of the Messenger of Allah also practiced it after him: al-Bukhari narrated from Ibn Umar:
"The Prophet had contracted with Khaybar for half of what it produced of fruit or crops; he gave his wives a hundred wasq: eighty wasq of dates and twenty wasq of barley. Umar divided Khaybar and left the Prophet's wives the choice: that lands and water be allotted to them, or that they keep the harvest. Some chose the land and the water, and others the wasq; Aisha and Hafsa were among those who chose the land and the water."Narrated by al-Bukhari (2203) and Muslim (1551)
The path of analogy and reflection: capitals are assets that do not grow by themselves and cannot be hired; they grow only through the work applied to them: it is therefore lawful to work in them for a portion of what comes out of them, as in the qirad; indeed musaqat is more deserving of lawfulness than the qirad, for the gharar (risk) and the hazard are greater in the qirad: it may be that the capital yields profit and it may not; the lawfulness of one of the two is like that of the other, neither predominating over the other; and the palms, by the habit Allah has instituted, bear fruit every year: there must therefore be fruit in most cases.
As for necessity and need: the need is compelling and calls to it; the owner of the trees may be unable to work himself, or to tend them well, or to devote himself to them, and the one who is able and free finds neither land nor trees: the one must be employed by the other; were the owner to hire someone, an immediate wage would be due, which he may be unable to pay, while he may harvest nothing and the worker would slacken: need has therefore called for permitting this contract, thereby answering both needs and securing the benefit of each, as in the muqarada (Tabyin al-Haqa'iq 5/284; al-Ikhtiyar 3/99; al-Jawhara al-Nayyira 4/260; Mukhtasar al-Wiqaya 2/198; al-Lubab 2/16; al-Mudawwana 12/2; al-Ishraf 3/184-185; al-Sharh al-Kabir 5/315; Mughni al-Muhtaj 3/362; al-Najm al-Wahhaj 5/291; al-Mughni 5/226 and 5/242).
Imam Abu Hanifa and Zufar, on the contrary, held the invalidity of musaqat and muzara'a, for it is a hire against a portion of what comes out of the property, which is forbidden by the text and by reason.
As for the text: what was narrated from Rafi' from the Prophet, who passed by a garden that pleased him: "Whose is this? He answered: it is mine. He said: how did it come to you? He answered: I hired it. He said: do not hire it for anything" (narrated by al-Tabarani in al-Kabir 4354). It was also narrated from the Messenger of Allah (peace and blessings of Allah be upon him) "that he forbade the miller's qafiz" (narrated by al-Daraqutni 3/47, hadith no. 195 in the Book of Sales); hiring against a portion of what comes out is of the same meaning, and what is forbidden is not lawful.
And from Rafi' ibn Usayd ibn Zuhayr from his father:
"He went out to his people, the Banu Haritha, and said: O Banu Haritha, a trial has befallen your group. They asked: what is it? He said: the Messenger of Allah forbade the renting of land. They said: then we used to rent it for a portion of grain. He said: no. We used to rent it for straw. He said: no. We used to rent it for what is watered by the canals. He said: no: cultivate it, or grant it gratuitously to your brother."Weak hadith: narrated by al-Nasa'i (3862)
The apparent meaning of his word "cultivate it, or grant it to your brother" indicates the closing of muzara'a and musaqat by an absolute prohibition.
As for reason: hiring against a portion of what comes out, half, a third or a quarter, is hiring against an unknown compensation, which is not lawful, as when one hires a man to graze his sheep for a portion of the flock; it thereby becomes clear that the hadith of Khaybar relates to the jizya, not to muzara'a, in order to preserve the proofs of the sharia from contradiction; the proof that it cannot be related to muzara'a is that he said concerning it: "I confirm you in that by which Allah confirmed you" (mentioned by al-Bukhari in suspended form 3/1155, chapter on the expulsion of the Jews from the Arabian peninsula, Umar attributing it to the Prophet); yet there is in it, from him, an obscurity as to the duration, and ignorance of the duration invalidates the muzara'a without dispute. As for the abstention from rejecting the practices, it may indicate lawfulness as it may pertain to ijtihad: with this ambiguity, it does not prove lawfulness (al-Mabsut 23/11-12; Bada'i' al-Sana'i' 6/175; Tabyin al-Haqa'iq 5/284; al-Ikhtiyar 3/99; al-Jawhara al-Nayyira 4/260; Mukhtasar al-Wiqaya 2/198; al-Lubab 2/16).
Imam Ibn al-Mundhir said: they agreed on the lawfulness of handing over palms in musaqat for a third, a quarter or a half; and al-Nu'man rejected the contract upon a share of what comes out of a plantation (al-Ijma' 542).
The jurists differed over muzara'a: is it lawful or not? The Malikis, Abu Yusuf and Muhammad among the Hanafis (the fatwa being upon the view of these two), the Hanbalis, al-Nawawi, Ibn al-Mundhir, Ibn Khuzayma, al-Khattabi and other Shafi'is held the lawfulness of muzara'a subject to conditions specific to each of them, which will be detailed; they argued for it from the Sunna, the consensus of the Companions and reason.
As for the Sunna: the hadith of Ibn Umar (may Allah be pleased with him):
"The Prophet contracted with the people of Khaybar for half of what it produced of fruit or crops."Narrated by al-Bukhari (2203) and Muslim (1551)
As for the consensus of the Companions: al-Bukhari said: Qays ibn Muslim narrated from Abu Ja'far:
"There is not in Medina a single Emigrant family that does not farm for a third and a quarter; Ali practiced sharecropping, as did Sa'd ibn Malik, Abdallah ibn Mas'ud, Umar ibn Abd al-Aziz, al-Qasim, Urwa, the families of Abu Bakr, of Umar and of Ali..."Mentioned by al-Bukhari in suspended form with decisive wording (2/280); narrated by Ibn Abi Shayba (21246)
And al-Bukhari said:
"Umar contracted with the people thus: if Umar brings the seed from his side, half is his; if they bring it, such an amount is theirs..."Mentioned by al-Bukhari in suspended form with decisive wording (2/280); narrated by Ibn Abi Shayba (37016)
Can there be a fact that could be said to be more manifest or more widespread than this? Such a fact cannot fall below the rank of consensus. It is an authentic and famous fact: the Messenger of Allah practiced it until his death, then his rightly guided caliphs until their death, then their successors; no family remained in Medina that did not practice it, and none rejected it: that was a consensus. The wives of the Messenger of Allah likewise practiced it after him, as al-Bukhari narrated from Ibn Umar:
"The Prophet had contracted with Khaybar for half of what it produced of fruit or crops; he gave his wives a hundred wasq: eighty wasq of dates and twenty wasq of barley. Umar divided Khaybar and left the Prophet's wives the choice: that lands and water be allotted to them, or that they be allowed them; some chose the land and the water, and others the wasq; Aisha and Hafsa were among those who chose the land and the water."Narrated by al-Bukhari (2203) and Muslim (1551)
Such a fact cannot be abrogated: abrogation is only conceivable during the lifetime of the Messenger of Allah; now, a thing practiced until his death, then by his caliphs after him, with the unanimity of the Companions, their practice and the absence of any dissenter, how could it be abrogated? And when? If the abrogation had occurred during the lifetime of the Messenger of Allah, how could it have been practiced after its abrogation? And how could its abrogation have been concealed so as not to reach his successors, given the fame of the story of Khaybar and their practice in the matter? Where was the narrator of the abrogation, to the point that he did not even mention it or inform them of it? (see Bada'i' al-Sana'i' 6/175-176; al-Hidaya 4/53; al-Ikhtiyar 3/93; al-Jawhara al-Nayyira 4/248; al-Lubab 2/58; Mukhtasar al-Wiqaya 2/194; Mawahib al-Jalil 7/127; al-Taj wa-l-Iklil 4/186; al-Sharh al-Kabir 5/43; Sharh Sahih Muslim 10/210-211; al-Mughni 5/242; Kashshaf al-Qina 3/624; Majmu' al-Fatawa 29/96; I'lam al-Muwaqqi'in 2/385; Fath al-Bari 5/12).
As for reason: the need for muzara'a is compelling: the owner of the land may be unable to work it himself and find nothing to hire with, and the one able to work finds neither land nor capital: need has therefore called for its lawfulness, thereby answering the need, as in the muqarada (al-Ikhtiyar 3/93; al-Jawhara al-Nayyira 4/249; al-Lubab 2/6; Mukhtasar al-Wiqaya 2/194).
Imam Abu Hanifa, Zufar and the Shafi'is of the school, on the contrary, held that muzara'a and mukhabara are not valid and are invalid, except the bayad (sowing between the palms and the vines) among the Shafi'is, as will be detailed; they argued for this from the Sunna and reason.
As for the Sunna: from Abdallah ibn al-Sa'ib: we entered upon Abdallah ibn Ma'qil and asked him about muzara'a; he said:
"Thabit related that the Messenger of Allah forbade muzara'a and ordered hiring for money (al-mu'ajara), saying: 'There is no harm in it'."Narrated by Muslim (1549)
From Sulayman ibn Yasir, Rafi' ibn Khadij said:
"We used to practice mukhabara in the era of the Messenger of Allah; he mentioned that a relative came to him and said: the Messenger of Allah has forbidden a matter that was profitable to us; and obedience to Allah and His Messenger is more profitable for us. He was told: and what is that? He said: the Messenger of Allah said: whoever owns land, let him cultivate it, or give it to his brother to cultivate gratuitously; let him not rent it for a third, nor for a quarter, nor for a specified food."Narrated by Abu Dawud (3395)
In one version:
"Abu Rafi' came from the Messenger of Allah and said: the Messenger of Allah has forbidden us a matter that was gentle for us, and obedience to Allah and to His Messenger is gentler for us; he has forbidden that any of us cultivate, except land whose entire ownership he possesses, or a maniha (a grant for cultivation) bestowed by a man."Hasan hadith: narrated by Abu Dawud (3397)
In another version:
"the Messenger of Allah forbids you the haql (the renting of farmland), and he said: whoever dispenses with his land, let him grant it gratuitously to his brother, or leave it."Narrated by Abu Dawud (3398)
And from Abu Ja'far al-Khatmi: my uncle sent me, with a young servant, to Sa'id ibn al-Musayyib:
"We said to him: a word has reached us from you concerning muzara'a. He said: Ibn Umar saw no harm in it until the hadith of Rafi' ibn Khadij reached him; he went to him, and Rafi' reported to him that the Messenger of Allah came to the Banu Haritha and saw crops in the land of Zuhayr. He said: how good is the crop of Zuhayr! They said: it is not Zuhayr's. He said: is it not his land? They said: yes, but it is the crop of so-and-so. He said: take your crop and return to him his expenses. Rafi' said: we took our crop and returned his expenses to him. Sa'id said: reduce your brother to poverty, or rent it to him for dirhams."Narrated by Abu Dawud (3399)
And from Jabir ibn Abdallah:
"In the era of the Messenger of Allah we used to take land for a third or a quarter, with the legumes; the Messenger of Allah stood up concerning that and said: whoever owns land, let him cultivate it; if he does not cultivate it, let him grant it gratuitously to his brother; if he does not grant it to his brother, let him keep it."Narrated by Muslim (1536)
The hadith of Rafi' concerning the garden (narrated by al-Tabarani in al-Kabir 4354), the prohibition of the miller's qafiz (narrated by al-Daraqutni 3/47, no. 195) and the hadith of Rafi' ibn Usayd (weak, narrated by al-Nasa'i 3862) have already been mentioned. The apparent meaning of his word "cultivate it, or grant it to your brother" indicates the closing of muzara'a by an absolute prohibition. If they called it a trial for them, it is because their livelihood was muzara'a, which they knew well and whose abandonment would have weighed upon them.
As for reason: hiring against a portion of what comes out, half, a third or a quarter, is hiring against an unknown compensation, which is not lawful, as when one hires a man to graze his sheep for a portion of the flock; it thereby becomes clear that the hadith of Khaybar relates to the jizya, not to muzara'a, in order to preserve the proofs of the sharia from contradiction; the proof of it is that he said concerning it: "I confirm you in that by which Allah confirmed you" (mentioned by al-Bukhari in suspended form 3/1155, Umar attributing it to the Prophet); yet there is in it, from him, an obscurity as to the duration, and ignorance of the duration invalidates the muzara'a without dispute; as for the abstention from rejection, it may indicate lawfulness or pertain to ijtihad, and therefore does not prove lawfulness with this ambiguity (Bada'i' al-Sana'i' 6/175-176; al-Mabsut 23/11-12; al-Hidaya 4/53; al-Ikhtiyar 3/93; al-Jawhara al-Nayyira 4/248; al-Lubab 2/5; Mukhtasar al-Wiqaya 2/194).
The secret of the prohibition of muzara'a is that the benefit of the land can be obtained through hire: it is therefore not lawful to work in it for a portion of what comes out of it, as with the animals; unlike the trees, upon which the hire contract is not possible: musaqat was therefore permitted for need (Mughni al-Muhtaj 3/364; Nihayat al-Muhtaj 5/282; al-Najm al-Wahhaj 5/294-296; al-Dibaj 2/444).
Imam al-Nawawi said: Ibn Surayj said: muzara'a is lawful. I say: those who held its lawfulness, it and that of mukhabara, also include great names of our school: Ibn Khuzayma, Ibn al-Mundhir and al-Khattabi; Ibn Khuzayma devoted a volume to it in which he explains the causes of the hadiths of prohibition and gathers the hadiths of the chapter; al-Khattabi followed him and said: Ahmad ibn Hanbal weakened the hadith of prohibition and said it is confused, of many forms. Al-Khattabi said: Malik, Abu Hanifa and al-Shafi'i invalidated it because they did not know its cause; the muzara'a is lawful and is part of the practice of the Muslims in all regions: no one invalidates this practice. Such are the words of al-Khattabi. The chosen view (of the Rawda) is the lawfulness of muzara'a and mukhabara, with the interpretation of the hadiths as applying to the case where it is stipulated that one shall have the cultivation of a specified plot and the other that of another: what is known in the school is the invalidation of this transaction, and Allah knows best (Rawdat al-Talibin 3/788).
He also said in Sharh Muslim: Abu Hanifa and Zufar said: muzara'a and musaqat are invalid, whether combined or separated, and if concluded they are dissolved. Ibn Abi Layla, Abu Yusuf, Muhammad, the other Kufans and the jurists of the later generations, as well as Ahmad, Ibn Khuzayma, Ibn Surayj and others, said: musaqat and muzara'a are lawful together and each separately; this is the apparent chosen view, on account of the hadith of Khaybar; the claim that muzara'a is what is meant at Khaybar is not accepted: it was lawful there in consequence of the musaqat, or rather independently; for the cause permitting musaqat exists in muzara'a, by analogy to the qirad, which is lawful by consensus and identical to muzara'a in everything; and the Muslims of all regions and all eras have never ceased to practice muzara'a. As for the earlier hadiths prohibiting mukhabara, the answer has been given: they relate to the case where each of the two is stipulated a specified plot of the land; Ibn Khuzayma composed a book on the lawfulness of muzara'a, in which he was thorough and answered the hadiths of prohibition, and Allah knows best (Sharh Sahih Muslim 10/210-211).
The Shaykh of Islam (Ibn Taymiyya) said: whoever examines with due knowledge knows that muzara'a is further from injustice and gambling than hire for a named, guaranteed wage: the hirer seeks only the benefit of the crop that will grow in the land; when the wage becomes due while the aim he has in the crop may or may not be attained, one of the two counter-values attains its aim without the other: one gains, and the other remains between gain and loss. As for muzara'a: if the crop comes, they share in it; if nothing comes, they share the deprivation: neither of the two alone attains his aim; it is therefore closer to justice and further from injustice and gharar than hire (Majmu' al-Fatawa 10/509-510).
According to al-Mubarrad, one says ajjara and ajara, ijaran and ijara (al-Mughrib 28; Tabyin al-Haqa'iq 5/105; Durrar al-Hukam 7/44; al-Bahr al-Ra'iq 7/297; Ibn Abidin 6/4). The jurists have multiplied the formulations defining hire.
The Hanafis say: hire is a contract upon benefits for a monetary compensation whose conclusion is renewed according to the occurrence of the benefits, hour by hour; if an impediment comes between it and the delivery of the benefits, or an obstacle prevents them, or the house collapses, the compensation is not owed to him, for he has not obtained the benefits: proof that the contract is upon the benefit, unlike marriage, which is a contract upon lawfulness, so that even if the wife dies after the contract or an impediment intervenes, the mahr remains due.
It has been said: hire, legally, is the transfer of ownership of a benefit for a compensation, which excludes sale, gift, loan for use and marriage: these are a lawfulness of benefits for compensation, not their transfer of ownership (al-Hidaya 3/231; Tabyin al-Haqa'iq 5/105; Durrar al-Hukam 7/44; al-Bahr al-Ra'iq 7/297; al-Jawhara al-Nayyira 3/319; Ibn Abidin 6/4).
The Malikis say: hire is a contract of exchange upon the transfer of ownership of a benefit for a compensation, including whatever indicates the transfer of ownership of the benefit, by wording or otherwise (al-Sharh al-Saghir with al-Sawi's hashiya 8/464). It has been said: hire is the transfer of ownership of the permissible benefits of a thing for a known period for a compensation (al-Sharh al-Kabir 5/334).
Ibn Arafa defined it thus: "the sale of the benefit of what can be transported, other than a ship and other than an animal devoid of reason, for a compensation not arising from that benefit, a part of which corresponds proportionally to a part of the benefit." His word "the sale of a benefit" excludes the sale of bodies; his word "can be transported" excludes the renting of a house and of land: the contract upon their benefits is not a hire but a renting; his word "other than an animal" excludes the hiring of mounts; his word "for a compensation not arising from it" excludes the qirad and the musaqat; the pronoun in "a part of which" refers to the compensation, and in "a part of the benefit" to the benefit; the mention of "part" was added so that the thing would enter into the definition (al-Mukhtasar al-Fiqhi 12/109; Mawahib al-Jalil 7/378; Sharh Mukhtasar Khalil 7/2).
The Shafi'is say: hire is a contract upon a benefit that is sought, known, capable of being expended and permitted, for a known compensation, with the thing remaining throughout the period of hire. The word "sought" excludes a trivial benefit, such as renting an apple to smell it, unless apples abound. The word "known" excludes an unknown benefit, invalid on account of gharar: the benefit must be known in quantity and description. The word "capable of being expended and permitted" excludes the rental of instruments of unlawful amusement, such as the tambourine, the flute and the rabab: their rental is unlawful, it is unlawful to pay the wage in return for them and to receive one, for that belongs to the unlawful consumption of people's wealth; likewise it is not lawful to hire singers, nor to hire a person to carry wine, nor to collect unlawful taxes, bribes and all forbidden things, may Allah preserve us from them all. The word "for a known compensation" excludes an unknown wage: it cannot be fixed as a wage, for it is the price of the benefit, and the price must be known, its ignorance being a gharar (Mughni al-Muhtaj 3/378; al-Iqna' 2/348; Nihayat al-Muhtaj 5/298; al-Najm al-Wahhaj 5/317; Umayra's hashiya 3/163; al-Dibaj 2/455; Kifayat al-Akhyar 348).
The Hanbalis say: hire is a contract upon a permissible, known benefit, taken bit by bit from a specified thing or one described in liability (dhimma), for a known period, such as the dwelling of this house for a year, or of a mount described so for carrying or riding for a year; or a contract upon known work, such as transport to such a place for a known compensation of both kinds. The subject of the contract is the benefit, not the thing: the benefit is what is claimed, and the wage is its counterpart; this is why the benefit is guaranteed, not the thing. If the contract has been attributed to the thing, it is because it is the locus and source of the benefit, just as the musaqat contract is attributed to the orchard while its subject is the fruit; and the enjoyment on the lessee's side is a necessary consequence of the benefit that is the subject of the contract, for the benefit exists only after it (Kashshaf al-Qina 3/642; Sharh Muntaha al-Iradat 4/5; al-Rawd al-Murbi' 2/88; Kashf al-Mukhaddarat 4/66).
All scholars of account agree on the lawfulness of the hire contract; they established it by the Book, the Sunna, consensus, analogy and need.
As for the Book: the saying of Allah:
"If they nurse for you, then give them their wages"
Surah At-Talaq, 6
The meaning is that nursing without a contract is a gratuitous gift obliging no wage, and that only the apparent contract obliges it: it thus becomes necessary (Mughni al-Muhtaj 3/378; al-Iqna' 2/347; Nihayat al-Muhtaj 5/298; al-Najm al-Wahhaj 5/317; al-Dibaj 2/455).
Al-Shafi'i said: had there been in hire only this, it would suffice; for Allah has mentioned that the divorced woman who nurses the child of her husband receives her wage; and the wage exists only in hire, and nursing involves gharar: the milk may be scarce or abundant, and the child may drink little or much; and Allah nonetheless permitted it (al-Bayan 7/285-286; al-Hawi al-Kabir 7/388; Jawahir al-Uqud p. 208).
Its validity is also indicated by the saying of Allah, in the story of Musa and Shu'ayb:
"One of the two women said: 'O my father, hire him: the best to hire is surely the strong, the trustworthy.' He said: 'I intend to marry you to one of these two daughters of mine, on condition that you serve me for eight years.'"
Surah Al-Qasas, 26-27
Had hire not been lawful in their sharia, she would not have said "hire him", and Shu'ayb would not have rejected it from her; moreover he made the benefit the mahr. And the saying of the Most High, in the story of al-Khidr and Musa:
"Had you wished, you could indeed have taken a wage for it"
Surah Al-Kahf, 77
which indicates the lawfulness of taking a wage for the service rendered.
As for the Sunna: several hadiths indicate the lawfulness and validity of hire, among them:
The hadith of Ibn Umar on the parable:
"Your example and that of the People of the Scriptures is that of a man who hired workers and said: who will work for me from morning to midday for a qirat? The Jews worked. Then he said: who will work for me from midday to the asr prayer for a qirat? The Christians worked. Then he said: who will work for me from the asr until sunset for two qirat? It is you. The Jews and the Christians became angry and said: we worked more and received less. He said: have I withheld anything at all of your right? They said: no. He said: that is My bounty, I bestow it upon whom I will."Narrated by al-Bukhari (2148)
In this hadith is mentioned a valid hire with a known wage for a known period; had that not been lawful, the Prophet would not have given it as a parable. The hadiths on this subject are numerous.
As for consensus: all Muslims of account, in every era and every region, have agreed on the lawfulness of hire, contracting it from the era of the Companions to our own without objection, except what is reported from al-Asamm, Ibn Kaysan and al-Qasani the Zahiri; and a number of scholars have transmitted the consensus on its lawfulness.
Ibn al-Mundhir said: they agreed that hire is established (al-Ijma' 546), and he said: every scholar of the community whose word I have memorized agrees to permit it (al-Awsat 6/76). Al-Shafi'i said: hire is lawful, the Sunna dealt with it, some Companions and Followers practiced it, and there is no disagreement on that between the scholars of our region and the generality of the people of the other regions (al-Awsat 6/76). Imam al-Juwayni said: all whose consensus carries weight have agreed on the validity of hire; the dissent of Ibn Kaysan, al-Asamm and al-Qasani carries no weight, for two reasons: they are not among the people of religious authority, and their dissent is preceded by the consensus of the community on the validity of hire before them (Nihayat al-Matlab 8/65).
Al-Kasani said: hire is lawful according to the generality of the scholars. Abu Bakr al-Asamm said: it is not lawful, and this is his analogy: hire is the sale of a benefit, and benefits do not exist in the present; the nonexistent cannot bear sale: there is thus no way to permit it, neither by the present state nor by the eventual outcome (ma'al); but we approve its lawfulness by the Noble Book, the Sunna and the consensus. He also said: the community agreed on this before the existence of al-Asamm, contracting hire from the era of the Companions to our own without objection: his dissent therefore need not be heeded, for it comes to contradict a consensus (Bada'i' al-Sana'i' 4/173-174). The qadi Abd al-Wahhab said: the lawfulness of hire in general is a matter of agreement, except what is reported from Ibn Ulayya and al-Asamm; the scholars do not count the dissent of such men as a dissent, and this consensus comes from the early generations before the transgression of these innovators (al-Ishraf 3/196, no. 1040).
Ibn Qudama said: the people of knowledge, in every era and every region, have agreed on the lawfulness of hire, except what is reported from Abd al-Rahman ibn al-Asamm: he is said to have held that it is not lawful, for it is gharar, that is, that one contracts upon benefits not yet created; this is an error that does not prevent the conclusion of the consensus, which preceded through the eras and spread through the regions (al-Mughni 5/250). Al-'Iraqi said: the consensus was concluded on the lawfulness of hire (Tarh al-Tathrib 6/152); and many other scholars have transmitted the consensus on the lawfulness of hire.
As for analogy: benefits are like bodies: the need for benefits is like the need for bodies; since the contract of sale upon bodies is lawful, hire upon benefits must be lawful (al-Bayan 7/288; al-Mughni 5/250). As for need: it is compelling; necessity calls to it: not every man who wants a task is able to do it himself, and when he is able, he does not do it well; just as not every man who wants food to eat and clothes to wear is able to produce and make them himself: necessity has therefore called for the hire of benefits as it called for the purchase of bodies; sale is lawful, and hire likewise (al-Hawi al-Kabir 7/390).
Allah legislated contracts for the needs of the servants; the need for hire is compelling: not everyone has a house of his own to dwell in, nor land to cultivate, nor a mount to ride, and he may be unable to acquire them by purchase, for lack of a price, or by gift or loan; he therefore needs hire, which was permitted, in departure from analogy, for the need of the people, like the salam. In truth, the sharia legislated for each need a contract proper to it: for the transfer of ownership of a thing for a compensation it legislated a contract, which is sale; for its transfer without compensation, a contract, which is the gift; for the transfer of ownership of the benefit without compensation, a contract, which is the loan for use; had hire not been legislated, while the need for it is compelling, the servant would have found no way to answer this need, and that would be contrary to the purpose of the sharia (Bada'i' al-Sana'i' 4/174). The need of the people is not unknown: not every man owns a house, not every traveler is able to acquire a camel or a mount, and the owners of property are not obliged to lodge and carry people gratuitously; likewise craftsmen work for wages: not everyone can do it, nor find a volunteer; hire is therefore necessary, and Allah has made it a path of provision, most earnings being made through crafts (al-Mughni 5/250).
Abu al-Ma'ali al-Juwayni said: we do not deny that hire, bearing upon benefits not yet created, deviates somewhat from analogy; but it is justified by the generality of need; we have mentioned in several places that general need is equated with particular necessity; what is established in principle for need has its establishment and validation in the case of individuals not suspended upon the occurrence of need, to the point that one says: hire is concluded for the one who has no dwelling and needs one, and is not concluded for the one who owns dwellings; on the contrary, the ruling of general permission covers all cases (Nihayat al-Matlab 8/67).
The jurists of the four schools agree on the lawfulness of the ju'ala for the return of the runaway slave. Ibn Qudama said: the ju'ala for the return of lost property, the runaway and other things is lawful; it is the view of Abu Hanifa, Malik and al-Shafi'i, and we know of no dissenter (al-Mughni 6/20). Ibn Hubayra said: they agreed that the return of the runaway deserves the reward (ju'l) if it was stipulated (al-Ifsah 2/67).
They differed beyond this case: the majority of the jurists, the Malikis, Shafi'is and Hanbalis, uphold the lawfulness of the ju'ala, arguing as follows: by the saying of Allah:
"and for him who brings it, the burden of a camel"
Surah Yusuf, 72
and the burden of a camel was, among them, a known measure, like the wasq; and the sharia of our predecessors is a sharia for us, so long as nothing contradicting it has come in our sharia.
And by the hadith of the Two Sahihs from Abu Sa'id:
"A company of the Companions of the Prophet set out on a journey and alighted near an Arab tribe, whom they asked for hospitality; they refused to host them. The chief of that tribe was stung, and they tried every remedy for him without avail. One of them said: go to those travelers; perhaps one of them has something. They came to them and said: our chief has been stung, we have tried everything without success; do you have anything? One of them said: yes, by Allah, I know how to perform the incantation (ruqya); but, by Allah, we asked you for hospitality and you did not grant it: I shall not recite for you until you set a reward. They agreed with them upon a flock (qati') of thirty head of sheep. He began to spit and to recite: Praise be to Allah, Lord of the worlds; the man rose as if just released from a tether, and walked with no ill. They paid them the agreed reward. One of them said: divide it. The one who had recited said: do not; let us go to the Prophet, tell him what happened and see what he orders us. They came to him and told him; he said: 'How do you know that it was an incantation?' Then he said: 'You have done right; divide it, and allot me a share with you.' And the Messenger of Allah smiled."Narrated by al-Bukhari (2156) and Muslim (2201)
Need also calls for it: the work may be unknown, as in the return of the runaway or of lost property, and hire cannot be concluded therein; need calls for their return, and one may find no one to do it gratuitously: need has therefore called for permitting the promise of a reward despite the ignorance of the work, that ignorance not being binding, unlike hire; do you not see that hire, being binding, requires the determination of a duration, whereas the permissive contracts such as partnership and agency do not require the determination of their duration, each of the two contracting parties being able to leave them, so that nothing unknown becomes binding upon him, unlike the binding contract.
The reward is, among the Malikis, a license (rukhsa) by agreement, and analogy would require its invalidity, indeed its non-validity on account of its gharar; but it departed from that by the surah and the hadith, for necessity (al-Mukhtasar al-Fiqhi 12/365; al-Ma'una 2/119; Mawahib al-Jalil 7/450; Sharh Mukhtasar Khalil 7/59; al-Sharh al-Kabir with al-Dasuqi 5/429; Manh al-Jalil 8/59; al-Muhadhdhab 1/411; al-Bayan 7/407; Mughni al-Muhtaj 3/541; Asna al-Matalib 2/439; Nihayat al-Muhtaj 5/532; al-Najm al-Wahhaj 6/89; al-Mughni 6/20; al-Kafi 2/332; Sharh al-Zarkashi 2/220; Kashshaf al-Qina 4/247-248; al-Rawd al-Murbi' 2/152; Sharh Muntaha al-Iradat 4/280-281; Mutalib Uli al-Nuha 4/208).
The Hanafis, on the contrary, held that taking the reward is valid only for the return of the runaway, and it is forty dirhams, with no other case. For one who brings back the runaway to his master from a distance of a journey or more, the reward is forty dirhams, no more, even without stipulation, by istihsan; if they agree upon fifty, the increase is not valid, unlike the agreement upon a smaller amount; if the returner consists of two men, the amount is divided between them, as if the runaway were shared between two men and the amount according to their shares; if a slave girl is brought back with her small child, who merely follows her, nothing is added to the reward (Majma' al-Anhur 2/533; al-Durr al-Mukhtar 4/288-289).
It is said in al-Durr al-Mukhtar: nothing at all, for the finder of wealth, an animal or lost property, as a reward, except by a stipulation of the kind: "whoever returns it shall have such a thing"; he then receives the wage of the equivalent, as in an invalid hire.
Ibn Abidin said: his word "he shall receive the wage of the equivalent" was explained in al-Muhit as being an invalid hire; the Bahr objected to it, saying that there is no hire at all, for lack of an acceptor, and al-Maqdisi answered by relating that word to the case of an assembly present. I say: what confirms this is found in the hires of the walwalajiyya: he loses something and says: whoever shows it to me shall have such a thing; the hire is invalid, for the beneficiary is not specified and pointing out is not work deserving a wage; no wage is therefore due. If he specifies a particular man, saying: if you show it to me you shall have such a thing, then if he goes and shows it, the wage of the equivalent is due for the walking, for that is work deserving under a hire contract, though not quantified; the wage of the equivalent becomes due; if he shows it without walking, it is as in the first case. It thus appears that here, if a particular person is designated, the hire is invalid, the place of return not being quantified, and the wage of the equivalent becomes due; if he generalizes, it is invalid and without wage (al-Durr al-Mukhtar with Ibn Abidin's hashiya 4/280-281).
The ju'ala differs from hire in several rulings, of which here is the essential:
The detail of all this will come in the pillars of the ju'ala and its conditions, Allah the Most High willing.
In usage one says wakil; hence the distinction drawn between "so-and-so is my agent" and "so-and-so is my executor" (Mawahib al-Jalil 7/132; Sharh Mukhtasar Khalil 6/68; Sharh Miyara 1/205; al-Bahja fi Sharh al-Tuhfa 1/319). The Shafi'is say: agency, legally, is the delegation by a person of the performance of his own act, among what admits of representation, to another, to perform it during his lifetime (al-Iqna' 2/319; Mughni al-Muhtaj 3/192; Nihayat al-Muhtaj 5/17; al-Dibaj 2/302). It has been said: it is the establishment of the agent in the place of the principal in the authorized act (al-Najm al-Wahhaj 5/23). The Hanbalis say: agency, legally, is the delegation of a peer capable of disposition, during his lifetime, in what representation covers of the rights of Allah and the rights of men, such as the contract of sale, of gift, of hire or of marriage (al-Mubdi' 4/355; Kashshaf al-Qina 3/538; Sharh Muntaha al-Iradat 3/501; Mutalib Uli al-Nuha 3/428; al-Rawd al-Murbi' 2/57; Manar al-Sabil 2/159).
Agency is lawful by the Book, the Sunna, consensus and reason.
As for the Book: the saying of Allah:
"Send then one of you with this your silver to the city"
Surah Al-Kahf, 19
this surah indicates the lawfulness of agency for purchase, for the one they sent was their agent. And the saying of the Most High:
"If you fear a breach between the two, then send an arbiter from his family and an arbiter from her family"
Surah An-Nisa, 35
and His saying:
"Go with this shirt of mine"
Surah Yusuf, 93
and His saying:
"Alms are only for the poor, the needy, and those employed to collect them"
Surah At-Tawba, 60
so work upon them was permitted, by virtue of the representation of the entitled.
As for the Sunna: what al-Bukhari narrated from Urwa al-Bariqi:
"the Prophet gave him a dinar to buy him a sheep; he bought him two, sold one for a dinar and returned with a dinar and a sheep; he invoked blessing upon his sale, and said that had he bought dust he would have made a profit on it."Authentic hadith: narrated by al-Bukhari (3443) from Urwa, and by Abu Dawud (3386); al-Tirmidhi (2157) narrated it via Habib ibn Abi Thabit from Hakim ibn Hizam; Abu Isa said: the hadith of Hakim ibn Hizam is not known except by this way, and Habib ibn Abi Thabit did not hear Hakim ibn Hizam, in our view
From Abu Nu'aym, Wahb ibn Kaysan said: I heard Jabir ibn Abdallah say: I intended to set out for Khaybar, and the Messenger of Allah said to me:
"When you come to my agent in Khaybar, take from him fifteen wasq; if he asks you for a sign, place your hand upon his collarbone."Authentic hadith: narrated by Abu Dawud (3632) and al-Daraqutni (4304)
the collarbone being the bone between the hollow of the throat and the shoulder, and there are two collarbones at the sides. This hadith proves the validity of agency, and that the imam may appoint an agent over the alms to collect them and pay them to the entitled, and give a sign to his messenger.
There are also the reports of the Two Sahihs showing that the Prophet sent collectors for the zakat: Abu Humayd al-Sa'idi said:
"the Messenger of Allah appointed a man of the tribe of Azd, called Ibn al-Lutbiyya, collector of the alms of Banu Sulaym; upon his return he made him render accounts."Narrated by al-Bukhari (1429) and Muslim (1832)
Muslim narrated from Abu Hurayra:
"the Messenger of Allah sent Umar over the alms..."Narrated by Muslim (983)
Al-Hakim narrated in al-Mustadrak, from Ja'far ibn Muhammad ibn Ali from his father: "the Messenger of Allah sent Amr ibn Umayya al-Damri to the Negus to ask him for the hand of Umm Habiba, daughter of Abu Sufyan, then the wife of Ubaydallah ibn Jahsh; he married her to him (to the Prophet), and the Negus paid her, on his own behalf, four hundred dinars on account of the Messenger of Allah" (narrated by al-Hakim in al-Mustadrak 6771; it contains Muhammad ibn Umar al-Waqidi, an abandoned narrator, but it is supported by a hasan mursal narration: Ibn Ishaq reported it in his Sira 373, and al-Bayhaqi in al-Kubra 13574 from Muhammad ibn Ishaq from Abu Ja'far). And the Prophet said in the hadith of al-Asif:
"Go then, O Unays, to the wife of this man; if she confesses, stone her."Narrated by al-Bukhari (6842) and Muslim (1697)
As for consensus: the people of knowledge, in every era and every region, have agreed on the lawfulness of agency, practiced by the people from the first generation to our day without objection; a number of scholars have transmitted the consensus on this. Ibn Qudama said: the community has agreed on the lawfulness of agency in general (al-Mughni 5/51). Ibn Hazm said: they agreed on the lawfulness of agency in sale, purchase, the safekeeping of goods, the collection of rights upon wealth and their payment, and the management of wealth (Maratib al-Ijma' p. 61). Ibn Abd al-Barr said: there is no disagreement among the scholars on the lawfulness of agency (al-Tamhid 2/108). The shaykh Khalil said: the community has agreed on the lawfulness of agency in general (al-Tawdih 6/381). Abu al-Ma'ali al-Juwayni said: agency is valid by the consensus of the scholars (Nihayat al-Matlab 7/23). Ibn Hubayra said: they agreed that agency is among the lawful contracts in general (al-Ifsah 1/452). Al-Maziri said: the consensus on the lawfulness of agency in general is established (Sharh al-Talqin 6/800); and many others.
As for reason: agency is mutual assistance, either for the one who wishes to spare himself the effort of the task, or for the one incapable of it; both cases are permitted; the need of the people for it is most compelling: not everyone can do what he needs; a man may be incapable of performing certain acts himself, whether from lack of knowledge, or their great number, or out of dignity: he must delegate another, thereby answering the need and the hardship; were delegation not lawful, hardship would follow, and it is excluded by the text:
"and He has not laid upon you in religion any hardship"
Surah Al-Hajj, 78
Many scholars have even said that accepting delegation is recommended, by the saying of the Most High:
"Help one another in righteousness and piety"
Surah Al-Ma'ida, 2
and the saying of the Prophet:
"Allah is in the aid of the servant as long as the servant is in the aid of his brother."Narrated by Muslim (10502)
Agency may be unlawful if it entails aid to a forbidden act, disliked (makruh) if it entails aid to a discouraged act, obligatory if it is a matter of averting harm from the principal, as in the delegation by a compelled man of the purchase of food he cannot acquire himself, and permissible when the principal has no need of the agency and the agent requests it without purpose (al-Hidaya 3/136; al-'Inaya 11/70; al-Jawhara al-Nayyira 3/467; al-Ikhtiyar 2/188; Majma' al-Anhur 3/308; Mawahib al-Jalil 7/133; al-Hawi al-Kabir 6/495; al-Bayan 6/395; Mughni al-Muhtaj 3/192; al-Najm al-Wahhaj 5/24; I'anat al-Talibin 3/161; al-Mughni 5/51; Nil al-Awtar 6/4).