SHARI'AH LAWS PERTAINING TO HIRING AND TENANCY

Q: Muhtaram Mufti Saheb; Assalaamu Alaykum Wa Rahmatullaahi

The majority of our Muslim community are businessmen and are often engaged in Ijaarah (hiring). In order for us to conduct our business according to the Shari’ah, it will be appreciated if you could explain to us the rules and principles of Ijaarah.

A: Generally, there are two groups of people in society: a) the wealthy, who are dependant on others to conduct their affairs, and b) The poor who depend on the wealthy by serving them to earn an income. This is also understood from the following verse:

‘ … We distribute among them their livelihood in the life of this world, and We have exalted some of them above others in degrees, that some of them may take others in subjection; and the mercy of your Lord is better than what they amass.’ (Zukhruf 32)

Allaamah Sarakhsi (RA) states that the above mentioned verse refers to Ijaarah (hiring) and forms the basis for its permissibility. (Bahas-o-Nazar part 25 pg.10)

Thaabit ibn Dhahhaak (Radhiallaahu Anhu) states that Rasulullah (Sallallaahu Alayhi Wasallam) said, ‘There is nothing wrong in hiring.’ (Mishkaat pg.258; Me’raaj)

The Fuqahaa (Jurists) have explained the rules and principles of hiring and hereunder is a summarised version of that:

Definition

To take possession of an item in lieu of a fee. (Raddul Mukhtaar vol.10 pg.4; HM Saeed)

Prerequisites

The contractual agreement of hiring is established with a proposal (Iejaab) and acceptance (Qubool) in the past tense and in one sitting with words implying hiring, for example, the landlord says, ‘I have hired the house to you’ and in the same sitting the tenant says, ‘I have accepted.’ (Fataawa Hindiyya vol.4 pg.409; Rashidiyya)

Conditions

1) Both parties must be sane. The contractual agreement of a permanently or temporarily insane person is invalid. (Ibid pg.410)

2) It is not necessary for both or any one party to be an adult (attained maturity or at least 15 years of age). If a minor entered into a contractual agreement with the consent of his/her guardian, it will be valid. If the guardian did not consent, then the contract will be subject to the approval of the guardian. (Ibid)

3) The contractual agreement must be specific. There should be no ambiguity in the agreement that has a potential of a dispute in future. In hiring benefits, for example, a house or shop, the rental amount, the period, etc. must be specified. In hiring services, for example, a teacher, his salary, work description, contract period, etc. must be specified. If there is any ambiguity in the contractual agreement that may lead to a dispute, the contract will be invalid. (Ibid pg.411). In order to avoid disputes, it is emphasised to reduce agreements to writing. Verbal agreements may lead to misunderstandings and disputes.

4) When the agreement is concluded, the landlord or his representative must be able to hand over the premises as agreed. If he is unable to hand over the premises for whatever reason, the agreement will be invalid. If there is no obstacle in handing over the premises, he should do so as agreed. (Ibid)

5) The tenant or the lessee must be able to benefit from whatever is hired. If it is not possible, for example, the hired property is in auction due to insolvency or the hired car is stolen from the lessor, then the agreement will be invalid. (Ibid)

6) The hired item must not be Haraam, for example, gambling machines. (Hidaya vol.3 pg.303; Ashrafiyya)

7) The tenant or lessee have the right to see the hired item even after concluding the agreement. If the tenant or lessee disapproves then he has the right to cancel the agreement. (Bahas-o-Nazar part 25 pg.23)

Types of Hired Persons

Ajeer-e-Khaas (Exclusively hired person)
An Ajeer Khaas is he who is hired by one person only and his (hired person) position is that of an Ameen (an entrusted person). Whatever is given to him by his contractor is an Amaanat (trust). An Ameen will not be responsible for the loss of an entrusted item if he did not do any deliberate harm or there was no negligence on his behalf. The fees of the hired person must be specified. (Hidaya vol.3 pg.293; Ashrafiyya). The common habit ‘do the work, I will pay you something’ is not permissible. When the hired time expires, the contractor is bound to pay the Ajeer-e-Khaas even if the contractor did not use him to do any work. (Bahas-o-Nazar part25 pg.36)

Ajeer-e-Aam (Commonly hired person)
An Ajeer-e-Aam is he who is not hired by any one particular person. The position of an Ajeer-e-Aam is of a Kafeel (guarantor) and he will be responsible for the loss of people’s items given to him if he has caused deliberate harm or the loss was due to his negligence. (Fataawa Hindiyya vol.4 pg.500; Rashidiyya). For example, if a motor mechanic parked the car of his client at his garage where there was a high risk of theft and the car got stolen from there. An Ajeer-e-Aam will be entitled for fees only upon completion of the contract given to him. The hired person should be paid timeously.

Hadhrat Abdullah ibn Umar (Radhiallaahu Anhu) narrates that Rasulullah (Sallallaahu Alayhi Wasallam) said, ‘Pay the hired person his fee before his sweat dries.’ (Mishkaat pg.258; Qadeemi). To delay payment without any valid Shar’ee reason is a major sin.

Some Responsibilities of the Tenant

1) The tenant is responsible for the daily maintenance, sweeping, removing garbage, etc. of the property. (Bahas-o-Nazar part25 pg.39)

2) The tenant cannot do anything that will damage the property. If he damages the property, the landlord can terminate the lease agreement. (Ibid)

3) If the tenant made extensions or renovations with the consent of the landlord, he may claim the expenses of that from the landlord. If he did not take the consent of the landlord, he cannot claim the expenses from the landlord. (Ibid)

4) It is permissible for the tenant to sublet the hired property. (Ibid)

Some Responsibilities of the Landlord

a) The landlord will be responsible to repair those things of the property which results in the tenant not being able to benefit from the property, for example, no electricity, etc. (Ibid)

b) The landlord must provide all those things that are necessary to benefit from the hired property, for example, keys of the security gates, etc. (Ibid)

Hiring of Waqf Property (Musjid property, etc.)

The hiring of a Waqf property will be governed by the rules and principles set out by the Waaqif (donor). (Al-Ashbah Wannazaair)

If the Waaqif did not specify a time limit for hiring of the Waqf property, then the Waqf property can be leased for the maximum period of three years. (Bahas-o-Nazar part 25 pg.26)

Disputes Between the Contractor (Musta’jir) and the Hired person (Ajeer)

Abdullah ibn Abbaas (Radhiallaahu Anhu) narrates that Rasulullah (Sallallaahu Alayhi Wasallam) said, ‘To substantiate a claim is upon the plaintiff and to take an oath is upon the defendant.’ (Mishkaat pg.326; Me’raaj)

Primarily, all disputes will be governed by the principle mentioned in the abovementioned Hadith. The Fuqahaa have explained the criteria to determine the plaintiff and defendant and application of the abovementioned Hadith according to the nature and merits of the dispute. Only competent Ulama having expertise in Fiqh will be able to expertly preside over such disputes and issue awards according to the Shari’ah.

The Contract will Terminate due to one of the following:

a) If one of the contracting parties pass away. (Badaai-us-Sanaai’ee)

b) If both the contracting parties make Iqaala (dissolve) the contract. (Bahas-o-nazar part25 pg.43)

c) If the hired property is destroyed, for example, through fire, etc. (Badaaius Sanaai’ee)

d) If the contract period (lease) expires. (Ibid)

This article is only a summary of the general rules and principles of Ijaarah (hiring) prepared to serve as a guideline to conduct our business according to the Shari’ah.

Last modified: July 19, 2007

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