Islamic Fiqh > Endowments (waqf) and property > 'Ariya: the loan for use > Ariya: pillars and conditions
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Updated on 25 September 2026 at 6:57 PM
The loan for use (ariya) is the free lending of a property whose benefit the borrower enjoys and which he must then return in kind. The nine sheets below, drawn from the Fiqh Encyclopedia (al-Mawsu'a al-fiqhiyya), define what the borrower may do with the borrowed item: renting it out, lending it on, pledging it, as well as the status of the pledged property and the lender's right of withdrawal. They then cover the conditions relating to the borrower and to the contract's wording, followed by loans limited in time, in use, or in both.
The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to their school, held that renting out the borrowed item is not valid; for the loan for use is not binding in principle, whereas the lease is: if the borrower rents it out and it perishes, he is liable for it, because he became a usurper by exceeding the permission. Moreover, the loan is lesser than the lease and a thing does not encompass what exceeds it; finally, the essence of the loan for use is restitution, whereas attaching the lessee's right to the item prevents that; hence renting it out was not permitted.
Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that it is not permissible for the borrower to rent out what he has borrowed ('al-Ifsah', vol. 2, p. 4). And Imam Ibn Qudama (may Allah have mercy on him) said: it is not permissible for him, the borrower, to rent it out, for he has not acquired ownership of the benefits and therefore cannot validly transfer them; and no disagreement is known on this point ('al-Mughni', vol. 5, p. 132).
The Hanafis said: neither renting out the lent item nor pledging it is permitted. If the borrower rents it out, he becomes liable at the moment he hands it over to the lessee, for he has become a usurper by exceeding the permission; and the lender may, if he wishes, hold the lessee liable, for the latter took possession of the property without its owner's permission. If the borrower is held liable, no recourse lies against the lessee, for it appears that he rented property belonging to the borrower; if the lessee is held liable, the borrower-lessor bears it when the lessee did not know the item had been lent to him, as a precaution against the harm of deception, unlike the case where he knew ('al-Jawhara al-Nayyira', vol. 4, p. 170; 'al-Lubab', vol. 1, p. 653; 'Mukhtasar al-Waqi'a', vol. 2, p. 128).
The Shafi'is said: if the borrower borrows an item for a period and then rents it out for that same period, the lease is not valid; for the lease is an exchange valid only in what one owns, and the borrower does not own the benefits: they remain the property of the item's owner, who merely permitted him to use it, so he cannot transfer that use to another ('al-Bayan', vol. 6, p. 517).
The Hanbalis said: if the borrower rents out the borrowed item and it perishes, he is liable for it; and if he rents it to someone unaware of the situation, the guarantee of the benefit rests on the lessee and that of the item on the borrower ('Kashshaf al-Qina'', vol. 4, p. 89-90; 'Sharh Muntaha al-Iradat', vol. 4, p. 110-111).
Al-Mardawi (may Allah have mercy on him), however, reported a view that renting out the borrowed item is permissible when the loan is for a fixed term, saying: this was said regarding the temporary loan. When validity is adopted, the lessee is then not liable according to the soundest view of the school ('al-Insaf', vol. 6, p. 115).
Ibn Qudama (may Allah have mercy on him) said: if someone lends another person an item and permits him to rent it out for a known period, or to lend it on without limit or for a period, that is permitted; for the right belongs to the owner, so what he permitted is valid, and he cannot withdraw after the lease contract is concluded until it expires, for the lease contract is binding. The item is then guaranteed against the borrower but not against the lessee, for the lease contract entails no guarantee; if he rents it out without permission, the lease is not valid: the guarantee rests on the lessee, and the owner may exact it from whichever of the two he wishes ('al-Mughni', vol. 5, p. 132).
The jurists differed over whether the borrower may lend on what he has borrowed.
The Hanafis, the Malikis and the Shafi'is, against the soundest view, held that the borrower may lend on what he has borrowed, just as the lessee may lend on what he has leased, unless its owner forbids him ('al-Jawhara al-Nayyira', vol. 4, p. 170; 'al-Lubab', vol. 1, p. 653; 'Mukhtasar al-Waqi'a', vol. 2, p. 128; 'Mawahib al-Jalil', vol. 7, p. 243; 'Sharh Mukhtasar Khalil', vol. 6, p. 121; 'al-Sharh al-Kabir' with 'Hashiyat al-Dasuqi', vol. 5, p. 142-143; 'Hashiyat al-Sawi', vol. 8, p. 183; 'al-Najm al-Wahhaj', vol. 5, p. 141; 'Mughni al-Muhtaj', vol. 3, p. 268).
The Hanafis said: lending on is permitted if the benefit does not vary with the user; for the loan for use is a transfer of the ownership of benefits, and if it is a transfer, whoever owns something may grant it within the extent of his ownership. The condition of non-variation with the user was set only to spare the lender greater harm, for he consented to the borrower's use, not to that of another.
Lending on is permitted only when the loan was granted without restriction. If someone borrows a mount with no specification, he may ride it and let another ride it, and carry on it and let another carry; but if he rides it himself, he may not let another ride, and if he does, he is liable, for his own riding was what had been fixed; likewise, if he lets another ride, he may not ride himself, and if he does, he is liable, for the other's riding was what had become fixed. Likewise, if he borrows a garment to wear himself and has another wear it, he is liable if the garment is lost; for it was restricted here to his own wearing and use. If, however, he borrows a house to dwell in and lends it to another who dwells in it, he is not liable, for houses do not vary with the occupant ('al-Jawhara al-Nayyira', vol. 4, p. 170; 'al-Lubab', vol. 1, p. 653; 'Mukhtasar al-Waqi'a', vol. 2, p. 128).
The Shafi'is, according to the sound view, and the Hanbalis held that the borrower may not lend on; for he does not own the benefit: it was merely made licit for him, and the one whose use was made licit cannot transfer that permission, just as a guest cannot allow others what was set before him. This distinguishes them from the lessee, who owns the benefits and may therefore transfer them, as one who buys something may dispose of it as he wishes.
The Hanbalis said: if the borrower lends on without permission and the item perishes with the second borrower, the owner may hold whichever of the two he wishes liable, for the value as well as the benefit. As for the first, it is because he empowered another to take the property of a third party without permission, as if he had let an animal loose on another's property and it devoured it; as for the second, it is because the item and its benefit were lost while in his hand. The established position places the guarantee on the second, for he is the one who took the benefit without the owner's permission and under whose hand the item perished, provided he knew the situation; if he did not know it, the guarantee of the item rests on him, for he received it as a loan and the lent item is guaranteed, while the guarantee of the benefit rests on the first borrower, who deceived the second by handing it over while making him hope for a free benefit. The reverse applies when he rents it to someone unaware of the situation: the guarantee of the benefit then rests on the lessee and that of the item on the borrower ('al-Mughni', vol. 5, p. 132; 'al-Kafi', vol. 2, p. 383; 'Kashshaf al-Qina'', vol. 4, p. 89-90; 'Sharh Muntaha al-Iradat', vol. 4, p. 110-111; 'Manar al-Sabil', vol. 2, p. 244).
Exception: if its owner permits him to lend it, lending on is valid by consensus.
The Shafi'is said: if the owner names the second borrower specifically, the first is discharged from the item with no recourse; but if the second returns it to him, he is not discharged and remains like an agent in the loan. If he does not name him, the first remains the borrower and the second borrows from him, with a right of recourse whenever he wishes; as soon as the second returns the item to him, he is discharged.
The Shafi'is and the Hanbalis expressly stated that the borrower may delegate someone to obtain the benefit on his behalf, such as having his agent ride the borrowed mount, whether his equal or one of lesser need, or his wife or his servant; for the benefit reverts to him through direct handling, and the agent's hand is his hand ('al-Bayan', vol. 6, p. 517-518; 'Rawdat al-Talibin', vol. 3, p. 615-616; 'Kanz al-Raghibin', vol. 3, p. 44; 'al-Najm al-Wahhaj', vol. 5, p. 141-142; 'Mughni al-Muhtaj', vol. 3, p. 268; 'Tuhfat al-Muhtaj', vol. 6, p. 683; 'al-Mughni', vol. 5, p. 132; 'Manar al-Sabil', vol. 2, p. 244).
The scholars do not disagree that a person may borrow something in order to pledge it; for the pledge is a form of security (tawthiq) obtainable with what one does not own, as with suretyship by testimony (ishhad) and guarantee (kafala); for the owner consented to the borrower's debt attaching to his property, which he may do as he consents to suretyship; and the pledge serves satisfaction, and the owner may permit the borrower to discharge his debt. This is by the consensus of the scholars. Thus, if someone borrows from another an item to pledge it against a debt owed by him: if he pays his debt, the borrowed item returns to its owner; otherwise it is sold for the debt it secures, and its owner, that is the lender, recovers from the borrower the item's value or its equivalent if it is fungible, as will be explained.
Ibn al-Mundhir (may Allah have mercy on him) said: all those whose reports we preserve among the scholars agreed that, when a man borrows from another an item to pledge it against a known number of dinars with a named man until a known term, and he does so, that is permissible ('al-Awsat', vol. 5, p. 697; 'al-Ijma'', no. 523; 'al-Iqna' fi masa'il al-Ijma'', vol. 3, p. 1660, no. 3245).
Conditions for the validity of pledging the borrowed item: if the owner permits the pledge, his permission is necessarily either restricted or general.
If it is restricted, by specifying an amount, a kind, a place, or a person, the borrower must comply. If he is permitted to pledge it against a certain kind, he may not pledge it against another kind, for discharging a debt through some kinds may be easier than through others, so restriction by kind is meaningful. Likewise, if he is permitted to pledge it in Kufa, he may not pledge it in Basra, for restriction to a place is meaningful; likewise, if he is permitted to pledge it with a specific person, he may not pledge it with another, for people vary in transactions, so designation is meaningful. If he contravenes any of these points and the item perishes, he is liable; for this is a disposal over another's property without permission, making him a usurper; the jurists agree on this.
Ibn Qudama (may Allah have mercy on him) said: the debtor should mention the pledgee, the amount for which he pledges the item, its kind, and the duration of the pledge; for harm varies with these, which necessitates mentioning them as with the pledge itself. When he stipulates one of these and then contravenes by pledging otherwise, the pledge is not valid; for no permission was given him for this pledge, so he resembles one granted no permission at all. Ibn al-Mundhir said: the scholars agreed on this ('al-Mughni', vol. 4, p. 225; see 'al-Awsat', vol. 5, p. 697).
They nevertheless differed over the case where the borrower is permitted to pledge the item for ten and pledges it for less.
The Hanafis said: it is not valid, and he may pledge it neither for less nor for more; for one acting with permission has his act restricted to its measure, and the permission did not cover the increase; nor pledging for a greater amount, for the pledged item is guaranteed and the owner made it guaranteed only for that amount, and he may have a valid purpose in this restriction, which is therefore meaningful.
The Shafi'is and the Hanbalis said: it is valid; for whoever permitted pledging for more permitted pledging for less.
If the pledge was permitted without restriction, without specifying any of these elements, the jurists differed: may the borrower pledge the item as he wishes?
The Shafi'is, according to the most correct view, and the Hanbalis according to one view, require mentioning the amount of the debt, its kind, its description, whether it is due or deferred, the person with whom the item is pledged, and the duration of the pledge; for uncertainty (gharar) varies with these, making their mention necessary; and this is like a guarantee upon the borrower's liability, and the guarantee of an unknown thing is not valid.
The Hanafis, as well as the Hanbalis according to the school's adopted view, which opposes the most correct view of the Shafi'is, said: if the permission to pledge is general, the borrower may pledge the item for little or much, against any kind, in any place, and with whomever he wishes; for acting upon the generality of the wording is the principle; and since it is a loan for use, whose validity does not require such specification, the same applies to a loan for the purpose of pledging. The proof that it is a loan for use is that the borrower takes possession of another's property for his own benefit, exclusively and without compensation: it is therefore a loan for use, like taking a service ('Bada'i' al-Sana'i'', vol. 6, p. 136; 'al-Jawhara al-Nayyira', vol. 3, p. 230, 232; 'Mukhtasar al-Waqi'a', vol. 2, p. 153; 'Majallat al-Ahkam', articles 726, 727 and 728; 'Tahbir al-Mukhtasar', vol. 4, p. 89; 'al-Sharh al-Kabir' with 'Hashiyat al-Dasuqi', vol. 4, p. 386; 'Rawdat al-Talibin', vol. 3, p. 270, 273; 'Mughni al-Muhtaj', vol. 3, p. 39-40; 'Nihayat al-Muhtaj', vol. 4, p. 272, 274; 'al-Dibaj', vol. 2, p. 179; 'al-Mughni', vol. 4, p. 225).
The jurists differed over the guarantee of the borrowed item pledged when it perishes in the borrower's hand, or when the debt being unpaid, the pledgee sells the pledge and takes his debt from its price.
The Hanafis said: the borrower's hand is a hand of trust, like the owner's; if the item perishes with him before its pledging or after the release of the pledge, he is not liable so long as there is no transgression or negligence. Thus, if he borrows an item to pledge it and the lender specified an amount, a kind, a place, or a pledgee, and the borrower contravenes and the pledge perishes with the pledgee, the lender has the choice: either holding the borrower liable, whereupon the pledge contract is concluded between him and the pledgee; or holding the pledgee liable, whereupon the pledgee recovers from the debtor what he stood surety for as well as the debt.
As for the pledgee, his hand is a hand of guarantee: if the borrowed item pledged perishes in his hand, he has obtained his right, and the equivalent of the debt becomes owed by the borrower-debtor to the lender, as will come.
It is said in 'Sharh al-Waqi'a': if the borrower contravenes and the pledge perishes, the borrower guarantees the pledge's value, for he disposed of another's property in an unauthorized manner and became a usurper; once he guarantees the value, the pledge contract is concluded between him and the pledgee, for he has become its owner by paying the guarantee, so it appears that he pledged his own property. Or the lender holds the pledgee liable: the pledge contract is then not concluded between the debtor and the pledgee, and the pledgee recovers from the debtor what he stood surety for and the debt; the debt is evident, and as for what he stood surety for, it is because the debtor implicated him in this, and it becomes as if the pledged slave died, the right became established, and the pledgee stood surety for the holder of that right.
If the borrower complies with the lender, pledging the borrowed item within what the lender specified, and the pledge perishes with the pledgee, then the borrower owes the amount of the debt he satisfied from it, that is from the lent item. If the pledge's value equals the debt or exceeds it, the pledgee has obtained the whole debt, and the borrower owes the lender the like of the debt in either case; for he discharged his debt from the lender's property, and whoever discharges his debt from another's property guarantees him its amount. He does not guarantee the value, for there was no transgression. If the pledge's value is less than the debt, the debt is reduced by the pledge's value; the debtor owes the pledgee the remainder of his debt, and he owes the lender the pledge's value, for he discharged that amount from the lender's property. The same applies if the pledge suffers a defect reducing its value: the debt is reduced accordingly, and the borrower owes the lender its equivalent.
If the borrowed item perishes with the debtor before its pledging or after its release, the debtor is not liable; for by this loss he did not use it to discharge his debt or any part of it, and it is the discharge of the debt or part of it through the loss of the borrowed pledge that triggers the guarantee ('Mukhtasar al-Waqi'a', vol. 2, p. 153-154; 'Bada'i' al-Sana'i'', vol. 6, p. 136; 'al-Jawhara al-Nayyira', vol. 3, p. 229-230; 'al-Hidaya', vol. 4, p. 149; 'Majma' al-Damanat', vol. 1, p. 264).
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis on the whole, held that the borrower's hand is a hand of guarantee: if the item perishes or is sold while pledged, the lender recovers from the borrower and holds him liable, as will be detailed in the ruling on the guarantee of the lent item.
The Malikis said: if the borrower pays his debt, the pledge returns to its owner, the lender; if he does not pay and the pledge is sold for the debt, the lender recovers from the borrower its value on the day he borrowed it; some said: on the day he pledged it; the point of this difference appears when the day of the pledge is later than the day of the loan and the value on the day of the pledge is higher or lower than the value on the day of the loan ('Hashiyat al-Sawi 'ala al-Sharh al-Saghir', vol. 7, p. 210; 'Hashiyat al-Dasuqi', vol. 4, p. 386). Or the lender recovers from the borrower what the latter paid of the lent item's price in discharging his debt; the 'or' expresses variation in wording, not choice. The borrower is liable, that is, the guarantee attaches to him: the lender may claim its value even without loss, because of his transgression, and may take it back from the pledgee, and the loan for use is voided; this holds even if it is property one cannot be deprived of, like a slave, or even if proof establishes the absence of negligence in its loss, when he pledged it otherwise than as permitted: for example, he borrowed it to pledge it against a debt in real property and pledged it against a debt in goods or foodstuffs. The owner may take it back if he finds it intact, unchanged in its essence with the pledgee; otherwise, its value remains binding upon the borrower absolutely, even if it is property one cannot be deprived of or it perished with proof ('al-Mukhtasar al-Fiqhi', vol. 9, p. 427; 'al-Jami' li-masa'il al-Mudawwana', no. 12629; 'al-Sharh al-Kabir', vol. 4, p. 386-387; 'Tahbir al-Mukhtasar', vol. 4, p. 89-90; 'Sharh Mukhtasar Khalil', vol. 5, p. 242).
The Shafi'is said: if one borrows something to pledge it against a debt and it perishes in the pledgee's hand after the pledging, no guarantee lies upon the pledgee in any case, for he is a trustee, and the right does not thereby lapse from the debtor's liability; if it perishes in the debtor's hand, he is liable, for he is at that moment a borrower. The Shafi'is differed over the status of the item borrowed for pledging: according to a first view, it remains a loan for use that persists, with no change on the lender's side into a debt secured upon that item, even though it may be sold for the debt, as will come; according to the more evident view, a debt owed to the lender rests upon that pledged item, for just as he may burden his own liability with another's debt, he should be able to burden his own property with that debt, each of the two being the seat of his right and disposal. It follows that the debt does not attach to his liability, so that even if he dies the debt does not fall due, and even if the pledged item perishes payment is not required of him; according to this view, the mention of the debt's kind, amount, and description is required, as well as that of the person with whom the item is pledged, this mention being required in the most correct view, whereas it is not required in the second view, given the weakness of its purpose; according to the loan-for-use view, none of this is required ('Rawdat al-Talibin', vol. 3, p. 271-272; 'Mughni al-Muhtaj', vol. 3, p. 44; 'Nihayat al-Muhtaj', vol. 4, p. 281-282; 'al-Dibaj', vol. 2, p. 180; 'al-Najm al-Wahhaj', vol. 4, p. 302; 'al-Siraj al-Wahhaj', p. 253).
The Hanbalis said: when the debt falls due and the pledgee does not collect it, he may sell the pledge and satisfy the debt from its price; the lender recovers from the debtor the guarantee, that is the value of the borrowed item or its equivalent if it is fungible, and not what it sold for, whether it sold for less or more than the value, according to one of the two views.
Ibn Qudama (may Allah have mercy on him) said: the correct view is that, if it is sold for less than its value, recovery is on the basis of the value; for the loan for use is guaranteed, so the shortfall in the price is guaranteed; if it sells for more, recovery is for what it sold for, for the slave (the item) is the lender's property and all of its price is his. Likewise, if the pledgee waives his right against the debtor, the whole price returns to its owner; then, when the debtor pays his debt with it, it reverts against him. The obligation to guarantee the shortfall does not imply that the surplus does not belong to the item's owner, as if it still existed. If the pledge perishes, the debtor guarantees its value, whether it perished through negligence or otherwise; Ahmad expressly stated this; it is because the loan for use is guaranteed ('al-Mughni', vol. 4, p. 226).
The majority of jurists, namely the Shafi'is, the Hanbalis and others, said: the owner-lender may not withdraw from the pledge after the pledgee has taken possession of it; before possession, withdrawal is permitted. The Shafi'is said: the owner-lender may not recover from the borrower what he lent him for pledging after the pledgee has taken possession; for were he to withdraw, this pledge would have no meaning, since it can no longer be relied upon and no benefit is derived from it.
Withdrawal remains permitted as long as the pledgee has not taken possession. The pledgee may then rescind a sale in which a pledge was stipulated as a condition, if he was unaware of the situation.
If the debt is deferred and the pledgee has taken possession of the lent item, the owner cannot compel the debtor to release the pledge. But if the debt falls due, or was already due and the pledgee grants him respite, the owner regains this right: if he demands payment and the debtor refuses to pay the debt, the owner may resort to the sale; he may also seek its redemption, for had the owner pledged property against a debt of his own, its recovery would be obligatory, which applies here all the more.
Thereafter, the lent item is sold if the debt is not discharged, whether by the owner or by the debtor, even without the owner's permission, whether the debtor is insolvent or solvent; just as the guarantor (kafil) is pursued for the debt despite the principal debtor's solvency or insolvency. Then the owner recovers from the debtor the sale price of the pledged item, for the debtor benefited from it in discharging his debt; whether it was sold at its value, for more, or for less within the usual market fluctuation: such is the view based on guarantee.
According to the view based on the loan for use, recovery is on the basis of its value if it was sold at that value or for less, and also for more according to the majority; for it is by reason of the loan for use that the item is guaranteed. Al-Qadi Abu al-Tayyib (may Allah have mercy on him) and others said: recovery is for the sale price, for it is the price of his property; al-Rafi'i said: this is the finest view, and he adds in 'al-Rawda': this is the correct view.
If the debt is discharged from the debtor's side, the pledge is released and the owner recovers his property. If the owner discharges it, the pledge is released and he recovers from the debtor what he paid, if the debtor had authorized him; otherwise he has no recourse, like one who pays another's debt outside of this. If the debtor denies the authorization and the pledgee testifies to it in favor of the lender, the testimony is accepted, there being no ground for suspicion against the witnesses; and the debtor is believed in denying the authorization, for the default is its absence.
If someone pledges property of his own for another with the latter's permission, the pledge is valid and he recovers from him the sale price; if he does so without permission, the pledge is valid but he has no recourse against him: in both cases it parallels its counterpart in guarantee ('Rawdat al-Talibin', vol. 3, p. 271-272; 'Mughni al-Muhtaj', vol. 3, p. 44-45; 'Nihayat al-Muhtaj', vol. 4, p. 283-284; 'al-Dibaj', vol. 2, p. 180; 'al-Najm al-Wahhaj', vol. 4, p. 302-303; 'al-Siraj al-Wahhaj', p. 253, 245).
The Hanbalis said: the lender of the pledge may compel his debtor to release it while the debt is within its term and before it falls due; for the loan for use is not binding. The lender's withdrawal from the permission to pledge is possible before the pledgee takes possession, for the pledge becomes binding only through possession; after possession, withdrawal is no longer permitted to him.
The same applies to the lessor: if he permitted the lessee to pledge the item before the pledgee takes possession, he may withdraw; but the lessor of an item that the taker pledges or benefits from, who then permits him to pledge it or takes delivery, has no withdrawal before the lease term expires, the contract having become binding.
The pledge constituted over a rented or borrowed item is sold if the debtor does not pay the debt: the judge sells it if the owner does not consent, for such is the consequence of the pledge contract. Once the pledge is sold, the lessor or lender recovers from the debtor its equivalent if it is fungible; otherwise, the more favorable of the two between its value and the sale price; for if it sold for less than its value, the debtor guarantees the shortfall, and if it sold for more, the whole price belongs to the owner. This is supported by the fact that, were the pledgee to waive his right over the pledge, the whole price would return to its owner; then, when the debtor pays his debt with it, it would revert against him; and the obligation to guarantee the shortfall does not imply that the surplus does not belong to the owner, as if the item still existed.
The expressly reported view is that the owner recovers the item's value, not the sale price, whether it exceeds the value or falls short of it; this was authenticated in 'al-Insaf', where it is said that it was advanced in 'al-Furu'', 'al-Fa'iq', 'al-Ri'aya al-Sughra' and 'al-Hawayin'.
If the pledge constituted over a rented or borrowed item perishes without transgression or negligence, only the borrowing debtor is liable; for the loan for use is guaranteed without restriction, unlike the rented item, which is therefore not guaranteed absent transgression or negligence.
If the lender or lessor himself releases the pledge and discharges the debt owed by the debtor with the latter's authorization, he recovers from the debtor what he paid on his behalf. If he discharges it gratuitously, he has no recourse, whether he intended a gift or intended neither gift nor recovery. If he discharges it without authorization intending recovery, he recovers from the debtor, for he discharged in his name a debt incumbent upon him; if he did not intend recovery, he has no recourse ('al-Insaf', vol. 5, p. 148; 'Kashshaf al-Qina'', vol. 3, p. 376-377; 'Sharh Muntaha al-Iradat', vol. 3, p. 337-338). This issue has already been treated in the 'Book of the Loan for Use' of this encyclopedia, but it is mentioned here a second time for its importance.
The borrower is the one who requests the loan. It is required that he be among those upon whom gratuitous disposition regarding this borrowed item is valid, in the sense that he can validly accept it as a gift; disposition is therefore not valid for one upon whom it has no effect, such as the child, the insane, or the animal. Likewise, it is not permitted to lend a Muslim, nor the Quran (the mushaf), to a disbeliever; nor is it permitted to lend weapons to one who would use them to fight the Muslims, nor anything similar involving a forbidden matter ('al-Taj wa-l-Iklil', vol. 4, p. 286; 'Sharh Mukhtasar Khalil', vol. 6, p. 122; 'al-Sharh al-Kabir' with 'Hashiyat al-Dasuqi', vol. 5, p. 144; 'Tahbir al-Mukhtasar', vol. 4, p. 367; 'al-Sharh al-Saghir', vol. 8, p. 183; 'Rawdat al-Talibin', vol. 3, p. 616; 'Asna al-Matalib', vol. 2, p. 325; 'Mughni al-Muhtaj', vol. 3, p. 269; 'al-Mughni', vol. 5, p. 131; 'Kashshaf al-Qina'', vol. 4, p. 78).
The wording (sigha) is the fourth pillar of the loan for use. According to the majority of scholars, it is concluded by anything indicating the loan, whether a word, an act, or a gesture, as the Malikis expressly stated.
The Hanafis said: the pillar of the loan for use is the offer (ijab) from the lender, whereas the borrower's explicit acceptance is not a pillar. The offer consists, for example, in saying: 'I lend you this thing', 'I grant you this garment or this dwelling', 'I let you till this land', 'This land is yours to till', 'I put this slave at your service', 'This slave is for you in service', 'I carry you on this mount' if no gift is intended, 'My house is yours to dwell in', 'My house is yours to dwell in for life' ('Bada'i' al-Sana'i'', vol. 6, p. 214; 'al-Fatawa al-Hindiyya', vol. 4, p. 363; 'Hashiyat Ibn 'Abidin', vol. 8, p. 383).
The Malikis said: the loan for use is concluded by what indicates it, whether a word, such as 'I lend it to you' or 'Yes' in answer to 'Lend it to me'; or an act, such as handing it over; or a gesture. Mere transfer suffices: no specific wording, as in sale, is required; anything indicating the gratuitous transfer of the benefit suffices ('al-Taj wa-l-Iklil', vol. 4, p. 288; 'Sharh Mukhtasar Khalil', vol. 6, p. 123; 'al-Sharh al-Kabir' with 'Hashiyat al-Dasuqi', vol. 5, p. 146; 'Tahbir al-Mukhtasar', vol. 4, p. 369; 'al-Sharh al-Saghir', vol. 8, p. 184).
The Shafi'is said: the loan for use is concluded, according to the sound view of the school, only by offer and acceptance from a speaking person, as with the gift of items; for the use of another's property depends on his permission: 'Lend me this', 'Lend me its benefit', even without relating the benefit to the item itself, 'Lend me', 'Take it so you may benefit'; for this indicates inner satisfaction, and the ruling was attached to it.
It suffices that the word come from one and the act from the other: one says 'Lend me' and the owner hands him the item; or the owner says 'I lend it to you' and the other takes possession, as in permitting food. The act of both parties does not suffice, though it has been said that it is valid. As for the mute, the loan is valid through his intelligible gesture, through his borrowing by it, and through his writing; likewise the writing of a speaking person is valid, as in sale, and is preferable for correspondence ('al-Bayan', vol. 6, p. 510; 'Rawdat al-Talibin', vol. 3, p. 618-619; 'al-Najm al-Wahhaj', vol. 5, p. 146; 'Mughni al-Muhtaj', vol. 3, p. 271).
The Hanbalis said: the loan for use is concluded by any word or act indicating it, such as saying 'I lend you this thing' or 'I permit you the use of this property'; or saying to the borrower 'Lend me this' or 'Give it to me that I may ride it or load it', whereupon the lender hands him the animal; or 'Settle yourself on this mount'. Likewise when one gives his animal to his tired companion and covers him with his cloak upon seeing him cold: this is an act of benevolence, and the mere giving suffices, as with giving charity; once he rides the animal or keeps the cloak upon him, the giving counts as acceptance.
Whatever indicates satisfaction, in word or act, suffices: as when someone hears a person say 'I wish someone would lend me such and such' and gives it to him; for this is a permission, not a contract, and the same applies to its like: permission to dispose is valid through the word and the act indicating it, as with permitting food through word and presenting the dish to the guest ('al-Mughni', vol. 5, p. 130; 'al-Kafi', vol. 2, p. 381; 'Kashshaf al-Qina'', vol. 4, p. 78; 'Matalib Uli al-Nuha', vol. 3, p. 723).
If the lender has set a term, the borrower may benefit from the item so long as the lender has not withdrawn and the term has not expired; for the permission covers it, and beyond the scope of this permission the original prohibition applies. If the lent item is land, he may not plant, build, or sow after the term or the withdrawal; if he does any of these, he must uproot his plantation and his building, and he is treated in this respect as a usurper, in accordance with the saying of the Prophet (peace and blessings of Allah be upon him):
The sweat of a wrongdoer confers no right.Authentic hadith, cited earlier in this encyclopedia
He further owes the wage of what he obtained of the land's benefit by way of aggression, and he must uproot, level the pits, make good the damage to the land, and observe all the rulings of usurpation, for it is an aggression ('al-Mughni', vol. 5, p. 133).
The second case is a loan restricted in time and in use, such as borrowing an item for a day or a week to use it oneself. The Hanafis said: the borrower may neither have another ride it nor have another wear it; for use varies with the users, and the principle for restricted grants is to observe the restriction where possible, and here it is possible, for people vary in riding mounts and wearing clothes: the restriction must therefore be observed, and if he contravenes intending harm, he is liable.
If he borrows a house to dwell in himself, he may lodge others in it; for what is acquired by the contract is dwelling, and people do not vary in this, so the restriction to his own dwelling is without effect and is void; unless the one dwelling in it is a smith, a plasterer, or the like, someone who would weaken the structure: he may then neither lodge him nor perform that work himself; for the lender would not customarily consent to it, and the unrestricted is restricted by custom ('Bada'i' al-Sana'i'', vol. 6, p. 215-216; 'al-Hidaya', vol. 3, p. 221; 'al-'Inaya', vol. 12, p. 250; 'al-Ikhtiyar', vol. 3, p. 69-70; 'Mukhtasar al-Waqi'a', vol. 2, p. 129; 'Hashiyat Ibn 'Abidin', vol. 8, p. 387; 'Majma' al-Damanat', vol. 1, p. 164-165).
The scholars do not disagree that if someone borrows a mount to ride to a defined place and goes beyond it, he is in transgression from the moment of exceeding; likewise, if he borrows a mount to carry a defined load and carries a greater weight: he is in transgression.
The Hanafis said: if someone borrows a mount to carry ten measures of barley, he may not carry ten measures of wheat, for wheat is heavier than barley: observing the restriction is therefore meaningful. If he contravenes intending harm, he is liable by application of the restriction alone; he is not liable for exceeding toward better or equivalent: if he borrowed the mount to carry ten measures of wheat, he may carry ten measures of barley, or the like of wheat, or lighter; for permission for a thing includes its equivalent and what is better ('Bada'i' al-Sana'i'', vol. 6, p. 215-216; 'al-Hidaya', vol. 3, p. 221; 'al-'Inaya', vol. 12, p. 250; 'al-Ikhtiyar', vol. 3, p. 69-70; 'Mukhtasar al-Waqi'a', vol. 2, p. 129; 'Hashiyat Ibn 'Abidin', vol. 8, p. 387; 'Majma' al-Damanat', vol. 1, p. 164-165).
Ibn Qudama (may Allah have mercy on him) said: if he borrows it to reach a place and goes beyond it, he has transgressed and owes the hire of an equivalent for the increase alone: if he borrows it to go to Tiberias and goes on to Jerusalem, he owes the hire of the distance between Tiberias and Jerusalem only.
If the two parties dispute, the owner saying 'I lent it to you for Tiberias' and the borrower 'You lent it to me for Jerusalem', the owner's word prevails; al-Shafi'i and the people of reasoning said so. Malik said: if it resembles what the borrower says, his word prevails and he is liable. Our view is that the owner is the defendant, so his word prevails, in accordance with the saying of the Prophet (peace and blessings of Allah be upon him):
The oath, however, is upon the one against whom the claim is made.Narrated by al-Bukhari and Muslim
It is reported in 'al-Mudawwana al-Kubra' concerning one who borrows a mount to ride on a distant journey. Ibn al-Qasim was asked: what do you say of a man who borrows from another a mount to ride wherever he wishes and load upon it whatever he wishes, while he is in Fustat, and then rides it to Syria or to Ifriqiya? He answered: his loan is examined; if the purpose of his loan was only the place he rides to, he is not otherwise liable, otherwise he is liable. Among that: a man comes and says 'Saddle your mount for me that I may ride it for a need of mine', and the other says to him 'Ride it wherever you like'; people then know that he did not saddle it for him toward Syria or Ifriqiya. He was asked: do you transmit it from Malik? He said: this is my own opinion. He then said: I found in 'Abd al-Rahim's questions that Malik said concerning one who borrows a mount for a town and the two differ, the borrower saying 'You lent it to me for such and such a town' and the lender 'for such and such a place': if it resembles what the borrower says, the oath is upon him; this shows what has just been explained.
It is also reported there concerning one who borrows a mount to carry wheat and carries something else. Ibn al-Qasim was asked: what do you say of a man who borrows a mount to carry wheat, loads stones upon it, and the mount is injured: is he liable or not according to Malik? He said: Malik said concerning a man who hires a mount from a man to carry or ride, then hires it out to another, and it is injured: if he hired it out for the same purpose for which it was hired to him, and the one who took it was just and trustworthy, there is no objection and no liability upon him; if what was loaded upon the mount was likely similar to what it was borrowed for and it is injured, there is no liability upon him; if that was more harmful to the mount and it is injured, he is liable. And he said: among what clarifies this for you: if he borrows it to carry cotton cloth and loads linen or cotton, or borrows it to carry wheat and loads lentils, he is not liable according to Malik; he is liable only when the matter differs and causes harm to the mount: then he is liable if it is injured.
It was further asked: if I borrow a mount to carry wheat and I ride it myself without loading anything, and it is injured, am I liable? He said: it is examined; if your riding harmed the mount more than the wheat and weighed upon it more, you are liable; otherwise no liability rests upon you.
It was also asked: if I borrow from a man a mount to ride to a certain place, ride it and take a second rider behind me, and the mount is injured, what is upon me? He said: its owner has the choice: either taking from you the hire of carrying the second rider, and he has nothing besides that, or holding you liable for its full value on the day you loaded the second rider. He was asked: all of its value or half? He said: all of its value. He was asked: is this Malik's view? He said: Malik was asked about a man who hired a camel to carry a named weight, went beyond it and loaded more than the stipulated weight, and the camel was injured, died, turned back, or weakened. Malik said: it is examined; if the excess was two or three ratls or the like, such that it would not be injured by such an addition, the owner may, if he wishes, take the hire of that addition, with no liability upon the hirer if the camel is injured; but if the excess was of a kind that could injure it, the camel's owner has the choice: either the value of his camel on the day of the transgression, or the hire of what was added on top of the first hire, without the value; the same applies to your question concerning the loan for use ('al-Mudawwana al-Kubra', vol. 15, p. 162-163; 'al-Bayan wa-l-Tahsil', vol. 15, p. 315).
The Shafi'is said: if someone borrows a mount to ride to a place and goes beyond it, he is in transgression from the moment of exceeding, and he owes the hire of an equivalent going from that place and returning. Two views exist on the obligation of the hire of return to the town from which the mount was borrowed: must he return it to the place from which he borrowed it, or not? According to the first, no; for the permission is severed by the exceeding, and he hands it over to the governor of that town. According to the second, yes, and it is the more sound view, authenticated by al-Subki and followed by al-Bulqini; just as an agent is not removed from his agency by his transgression, both being revocable contracts; according to this view, the hire of return is not owed by him ('Rawdat al-Talibin', vol. 3, p. 623-624; 'Mughni al-Muhtaj', vol. 3, p. 275).
The third case is a loan unrestricted in time but restricted in use: for example, borrowing a mount to carry wheat; he may load the wheat whenever he wishes, according to the Hanafis.
The fourth case is a loan restricted in time but unrestricted in use: for example, borrowing a mount for a day without specifying what he will carry; he may carry what he wishes on that day. If he keeps it beyond the term, he is liable if he benefited from it on the second day; it has been said that he is liable by mere retention, for he retains another's property without permission, and this is the correct view. If they differ over the time, the place, and what he will carry, the lender's word prevails along with his oath; for the permission proceeds from him and is established to the extent of what he attests, and the excess is an act of the borrower without permission: he is therefore liable ('Bada'i' al-Sana'i'', vol. 6, p. 215-216; 'al-Hidaya', vol. 3, p. 221; 'al-'Inaya', vol. 12, p. 250; 'al-Ikhtiyar', vol. 3, p. 69-70; 'Mukhtasar al-Waqi'a', vol. 2, p. 129; 'Hashiyat Ibn 'Abidin', vol. 8, p. 387; 'Majma' al-Damanat', vol. 1, p. 164-165).