Transactions
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Transactions |
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961. There are many Halal (allowed) deals and businesses, some are mentioned below:
(i) To sell and purchase intoxicating bevereges, non-hunting dogs, pigs, and unsalughtered carcass (as a precaution). Basides, if a permissible use of Najis-Ayn is possible, like, excrement and faeces being converted to fertilisers, its transaction is permitted.
(ii) Sale and purchase of usurped property, when required using it, like delivering or taking over.
(iii) Transaction with creditless money or counterfeil money, if the other side of the transaction does not know it. If he knows, however, the transaction will be permissible.
(iv) Sale and purchase of those things which are usually used for Halal (allowed) acts only, like, gambling tools.
(v) A transaction which involves fraud or adulteration, like, when one commodity is mixed with another, and it is not possible to detect the adulteration, nor does the seller inform the buyer about it, like, to sell ghee mixed with suet. This act is called cheating or adulteration (Ghishsh). The holy Prophet of Islam (s.a.w.a.) said: If a person makes a deceitful transaction with the Muslims, or puts them to a loss, or cheats them, he is not one of my followers. And when a person chearts his fellow Muslim (i.e.sells him an adulterated commodity), Allah deprives him of Blessings in his livelihood, closes the means of his earnings, and beams him to himself. Ghishsh has several kinds like following:
1. Mixing a good commadity with another, or with a bad commidity, e.g. mixing milk with water. 2. Giving good appearance to a commodity, like pouring water on old vegetables to appear new. 3. Changing the outward of the thing to another thing, like putting rolled gold, not allowing the buyer to know. 4. Hiding the commodity's defect when the buyer relies on the seller, in that he will not hide any defect.
962. There is no harm in selling a Tahir thing which has become Najis, but can be made Tahir by washing it. And if it cannot be made Tahir with water, and its use does not require it to be Tahir, like some oils, its sale is permissible. In face, even if its use requires it to be Tahir, if it has subs tantialHalal (allowed) benefit, its sale is permitted.
963. If a person wants to sell a Najis thing, he should inform the buyer about it, providing by not telling him, he might do something contrary to the rule of Shari'ah. For example, if he sells him Najis water which the buyer may require Wudu or Ghusl, and to offer his obligatory prayers, or he sells him something which he uses as foor or drink-in all such cases, the seller should inform the buyer. Of course, if the seller knows that it is no use informing the buyer who is careless, and does not care about Taharah or Najasah, that iti not necessary to inform.
964. There is no objection to selling or buying the oils which are imported from non-Islimic countries, if it is not known to be Najis. And as for the fat which is obtained from a dead animal, if there is a probability that it belongs to an animal which has been slaughtered according t o Islamic law, it will be deemed Tahir, and its sale and purchase will be permissible, even if it is acquired from a non-Muslim or is imported from non-Islamic countries. But it is Halal (allowed) to eat it, and it is necessary for the seller to inform the buyer about the situation, so that he dose not commit any thing contrary to his religious responsibility.
965. The purchase and sale of hide and skin which is imported from a non-Islamic country, or is bought from a non-Muslim, is permissible provided that one feels that the animal may probably be slaughtered according to Islamic lwa. And,Salat with it will be in order.
966. Transaction of intoxicating drinks is Halal (allowed) and void.
967. If a person has purchased a commodity on credit, and wishes to pay its price later from his Halal (allowed) earning or wealth, the transaction will be valid, but, he will have to pay the amount which he owes fromHalal (allowed) property, in order to be absolved of his responsibility.
968. If a thing which can be used forHalal (allowed) purposes is sold with the intention of putting it to Halal (allowed) use, for example, if grapes are sold so that wine may be prepared with them, the transaction is Halal (allowed) However, if the seller dose not sell it with that intention, but only knows that the buyer will prepare wine with the grapes, the transaction will be in order.
969. Making a human sculpture or that of an animal, as a precaution is Halal (allowed), but there is no harm in purchasing and selling it. However, painting human portraits or animals is permissible.
970. It is Halal (allowed) to purchase a thing which has been acquired by means of gambling, theft, or a void transaction Provided that it is associated with its use, and if a person buys such a thing from a seller, he should return it to its original owner.
971. If a seller sells a commodity which is sold by weight or measurement, at a higher rate against the same commodity, like, if he sells 3 Kilos of wheat for 5 Kilos of wheat, it is usury and, therefore, Halal (allowed). In fact, if one of the two kinds of same commodity is faultless, and the other is defective, or one is superior and the other is inferior, or if their prices differ, and the seller asks for more than the quantity he gives, even then it is usury and Halal (allowed). Hence, if a person gives unbroken copper or brass and takes more of broken copper and brass, or gives a good quality of rice, and asks for more of inferior kind of rice instead, or gives manufactured gold and takes a larger quantity of raw gold, it is usury and Halal (allowed).
072. If the thing, which he asks for in addition, is different from the commodity which he sells, like, if he sells 3 Kilos of wheat against 3 Kilos of wheat and one Dirham cash, even then it is usury and Halal (allowed). In fact, if he does not take anything in excess, but imposes the condition that the buyer would render some service to him, it is also usury and Halal (allowed).
973. If the person who is giving less quantity of a commodity, supplements it with some other thing, for example, if he sells 3 Kilos of wheat and one handkerchief for 5 Kilos of wheat, there is no harm in it, provided that the intention is that the transacton is not on cerdit. And if both the parties supplement the commidity with something, like 3 Kilos of wheat with a handkerchief is sold for 5 kilos of wheat and a hand kerchief, thereis no objection to it, provided the intention is that two kilos of wheat with the handkerchief on one side, was given for a handkerchief on the other.
974. From the point of usury, wheat and barley are commodities of one and the same category. Hence, if a person gives 3 Kilos of wheat and takes in exchange thereof, 3-5 kilos of barley, it is usury and Haram-and if, a person purchases 30 kilos of barley, on the condition that the would give in exchange 30 Kilos of barley, on the condition that he would give in exchange 30 Kilos of wheat at the time of its harvest, it is Halal (allowed), because he has taken barley on the spot and will give wheat some time later, and this amounts to taking something in excess, and therefore Halal (allowed).
975. Father and son, husband and wife can take interest from each other Similarly, a Muslim can take interest from a non-Muslim who is not under protection of Islam. But a transaction involving interest with a non-Muslim who is under protection of Islam, is Halal (allowed). But after the transaction is completed, and deal is closed, if payment of interest is permissible in the religion of that non-Muslim, a Muslim can receive interest from him.
976. It is not permissible as an obligatory precaution, to shave the beard or taking wage for doing it, except when there is helplessness, or not doing it will result in harm or difficulty which is unbearable, even if because of being mocked or disgraced.
977. Ghusl is Halal (allowed), and Ghusl means a vain word which is sung in such a manner that is fit for debauchery meeting. Also it is not permissible to recite Qur'an, supplications and the like, in this manner, and as an obligatory precaution, words other than these, should not be recited this way too. Listening to Ghina, and taking wages for it is Halal (allowed) either, and the wage taken in this way will not become one's possession. To learn and teach Ghina is not permissible. Music, i.e. playing with instruments of music will be Halal (allowed), when it is played in a manner which is fit for debauchery meetings, and otherwise it will not be Halal (allowed). Taking wages for playing unlawful musics is Halal (allowed) too, and it does not become the player's possession. To learn and teach unlawful musics is Halal (allowed) either.
978. There are six conditions for the sellers and buyers:
(i) They should be Bàligh.
(ii) They should be sane.
(iii) They should not be impudent, that is, they should not be squandering their wealth.
(iv) They should have a serious and genuine intention to sell and purchase a commidity. Hence, if a person says jokingly, that he has sold his property, that transaction is void.
(v) They have not been forced to sell and buy.
(vi) They should be the rightful owners of the commidity which they wish to sell, or give in exchange. Rules relating to these will be explained in the following.
979. To conduct business with a child who is not Bàligh, and who makes a deal independently, is void, except in things of small value, in which transactions are normally conducted with the children who can discern.
980. The father or paternal grandfather of a child and the executor of the father and executor of the paternal grandfather of a child, can sell the property of the child, and if these persons are not present and the circumstances demand, an Adil Mujtahid can also sell the property of an insane person, or an orphan, or one who has disappeared.
981. If a person usurps some property, and sells it and after the sale, the owner of the property allows the transaction, the transaction is valid, and the thing which the usurper sold to the buyer and the profits accrued to it, from the time of transaction, belongs to the buyer similarly, the thing given by the buyer, and the profits accrued to it from the time of the transaction, belong to the person whose property was usurped.
982. The commodity which is sold, and the thing which is received in exchange, should fulfil five conditions:
(i) Its quantity should be known by means of weight or measure or counting etc.
(ii) It should be transferable, otherwise the deal will be void.
(iii) Those details of the commodity, and the thing accepted in exchange, which influence the minds of the people in deciding about the transaction, must be clearly described.
(iv) The ownership should be unconditional, in a manner that, once it is out of his ownership, on other one foresakes his rights over it.
(v) The seller should sell the commodity itself and not its profit. Details of these will come later.
983. If a commodity is sold in a city by weight or measurement, one should purchase that commodity in that city by weight or measure. but if the same commidity is sold in another city at sight, one can purchase it in that city at sight.
984. If the transaction has become void because of the absence of any of the aforesaid conditions, except the fourth, but the buyer and the seller agree to have the right of discretion over their exchanged commodities, there is no objection if they do so.
985. The tranaction of a property which is Mawqufah (endowed) is void. However, if it is so much impaired, or is on the verge of being impaired, that it can not be possibly used for the purpose for which it was dedicated, like, if the mat of a mosque is so torn that it is not possible to offer prayer on it, it can be sold by the trustee or someone in his position. And if possible, as a precaution, its sale proceeds should be spent in the same mosque, for a purpose akin to the aim of the person who originally endowed it.
986. There is no harm in buying and selling a property which has been leased out to another person. However, the leaseholder will be entitled to utilise the property during the period of lease. And if the buyer does not know that the property has been leased out, or if he purchases it under the impression that the period of lease is short, he can cancel the transaction when he comes to know of the true situation.
987. If a commodity is sold for cash, the buyer and seller can, after concluding the transaction, demand the commodity and money from each other and take possession of it. The possession of immovable things, like, house, land, etc, and the movable things, like carpets, dress etc. means that the original owner renounces all his right over them, and hands it over to the opposite party with full right of discretion over it. In practice, the mode of delivery may vary according to the situation.
988. When something is sold on credit, the period should be fixed clearly. If a commodity is sold with a condition that the seller would receive the price at the time of harvest, the transaction is void, because the period of credit has not been specified clearly.
989. If a commodity is sold on credit, the seller cannot demand what he has to receive from the buyer before the stipulated period is over. However, if the buyer dies, and has some property of his own, the seller can claim the amount due to him from the heirs of the buyer, before the stipulated period is over.
990. If a person sells a commodity on credit, and stipulates a period for receiving its price, and for example, after the passage of half of the stipulated period, he reduces his claim and takes the balance in cash, there is no harm in it.
991. Purchase by advance payment means that a buyer pays the price of a commodity, and takes its possession later’Hence, the transaction will be in order, if, tor example, the buyer says: I am paying this amount so that I may take possession of such and such commodity after six months’, and the seller says’, I agree’ ,or the seller acepts the mon ey and says:’ I have sold such and such thing and will deliver it after six months.
992. There are seven conditions of advance payment contract:
(i) The characteristic, due to which the price of a commodity may vary, should be specified. However, it is not necessary to be very precise, and it will be sufficient if it can be said that its particulars are known.
(ii) Before the buyer and the seller separate from each other, the buyer should hand over full amount to the seller, or if the seller is indebted by way of cash to the buyer for an equivalent amount, the buyer can adjust it against the price of the commodity, if the seller agrees to it. And if the buyer pays certain percentage of the price of that commodity to the seller, the transaction will no doubt be valid equal to that percentage, but the seller can rescind the transaction.
(iii) The time-limit should be stipulated exactly. If the seller says that he would deliver the commodity when the crop is harvested, the transaction is void, because, in this case, the period has not been specified exactiy.
(iv) A time should be fixed for the delivery of the commodity when the seller is able to deliver it, regardless of whether the commodity is scarce or not.
(v) The place of delivery should, as a precaution, be specified. However, if that place becomes known from their coversation, it is not necessary to mention the name.
(vi) The weight or measure of the commodity should be specified. And there is no harm in selling through advance payment contract, a commodity which is usually bought and sold by sight. However, for such a deal, one must be careful that the difference in the quality of individual items of the commodity must be negligibly small, like in the cases of walnuts or eggs.
(vii) If the commodity sold belongs to the category which is sold by way of weight and measure, then it must not be exchanged for same commodity. In fact, as an obligatory precaution, it must not be exchanged for any other commodity which is sold by weight and measure. And if the commodity sold is the one which is sold by counting, then as a precaution, it is not permissible to exchange it for the same commodity in increased number.
993. If a person purchases a commodity by way of advance payment, he is not entitled, till the expiry of the stipulated period of delivery, to sell it to anyone except the seller, but there is no harm in selling it to any person after the expirty of the stipulated period, even if he may not have taken possession of it yet. However, it is not permissible to sell cereals like wheat and barley, and other commodities which are sold by weighing or measuring other than fruits, unless they are in possession, except that the buyer wishes to sell them at cost or lower price.
994. If the commodity which the seller delivers is of inferior quality to that which was agreed upon, the buyer can reject it.
995. If the seller delivers a commodity different from the one he had sold to the buyer, and the buyer agrees to accept it, there will be no objection to it.
996. If a commodity which was sold by advance payment becomes scarce at the time when it should be delivered, and the seller cannot supply it, the buyer may wait till the seller procures it, or even cancel the transaction, and take the refund, but as a precaution, he cannot sell it back to the seller at a profit.
997. If a person sells a commodity promising to deliver it after some time, and also agrees to take deferred payment for it, the transaction is void.
998. The right to cancel a transaction is called Khiyar (option to cancel a transaction). The seller and the buyer can cancel a transaction in the following ten cases:
(i) If the parties to the transaction have not parted from each other, though they may have left the place of agreement. This is called Khiyar-ul-Majlis.
(ii) If the buyer or the seller has been cheated in a sale transaction, or in any other sort of deal either of the parties has been deceived, they have a right to call off the deal. This is called Khiyar-ul-Ghabn.
(iii) If while entering into a transaction, it is agreed that up to a stipulated time, one or both the parties will be entitled to cancel the transaction. This is called Khiyaru-sh-Shart.
(iv) If one of the parties presents his commodity as better than it actually is, and thereby attracts the buyer, or makes him more enthusiastic about it. This is called Khiyar-ut-Tadlis.
(v) If one of the parties to the transaction stipulates that the other would perform a certain jod, and that condition is not fulfilled. Or if it is stipulated that the commodity will be of particular quality, and the commodity supplied may be lacking in that quality. In these cases, the party which laid the condition can cancel the transaction. This is called Khiyaru Takhalluf-ish-Shart.
(vi) If the commodity supplied is defective. This is called Khiyar-ul-Ayb.
(vii) If it transpires that a quality of the commodity under transaction is the property of a third person. In that case, if the owner of that part is not willing to sell it, the buyer can cancel the transaction, or can claim back from the seller the replacement of that part, if he has already paid for it. This is called Khiyar-ush-Shirkah.
(viii) If the owner describes certain qualities of his commodity which the buyer has not seen, and then the buyer realises that the commodity is not as it was described, the buyer can rescind the deal. Simlarly, if the buyer may have seen the commodity something back, and purchases it, thinking that the qualities it had then will be still existing, and if he finds that those qualities have disappeared, he has a right to cancel the deal. This is called Khiyar-ur-Ru'yan.
(ix) If the buyer does not pay for the commodity he has bought for three days, and the seller has not yet handed over to him the commodity, the seller can cancel the transaction. But this is in the circmstance when the seller had agreed to allow him time for deferred payment, without fixing the period. And if the seller had not at all agreed on deferred payment, he can cancel the transaction at once, without any delay. And if he had allowed him more than three days credit, then the seller cannot rescind, the deal before the termination of three days. if the commodity is perishable like fruits, which would perish or decay in less than three days, the respite is less. This is called Khiyar-ut-Ta'khir.
(x) A person who buys an animal, can cancel the transaction within three days. And if a person sold his commodity in exchange for an animal, he can also cancel the transaction withing three days. This is called Khiyar-ul-ayawan.
999. If a buyer not know the price of the commodity, or was unconcerned about it at the time of purchase, and buys the thing for higher than usual price, he can cancel the transaction if the difference of price is substantial, and if the difference is established at the time of abrigation. Otherwise, the buyer cannot cancel the deal as a precaution. Similarly, if the seller does not know the price of the commodity, or was heedless about it at the time of selling, and sells the thing at a cheaper price, he can cancel the deal if the differen is substantial and if other conditions mentioned above obtain.
1000. In a transaction of conditional sale, for example, a house worth $2000 is sold for $1000, and it is agreed that if the seller returns the money within a stip ulated period, he can cancel the transaction, the transaction, the is in order, provided that the buyer and the seller had genuine intention of purchase and sale.
1001. In a transaction of conditional sale, if the seller is sure that even if he did not return the money within the stipulated time, the buyer will return the property to him, the transaction is in order. However, if he does not return the money within the stipulated time, he is not entitled to dement the return of the property from the buyer. And if the buyer dies, he (the seller) cannot dement the return of the property from his heirs.
1002. If a person mixes in demand the ferior tea with superior tea, and sells it as a superior tea .buyer can cancel the transaction.
1003. If a buyer finds out that the thing purchased by him is defective, like, if he purchases an animal and finds that (after purchasing it) it is blind of an eye, and this defect existed before the transaction was made, but he was not aware of it, he can cancel the transaction and return the animal to the seller.
And if it is not possible to return it, for example, if some change has taken place in it, or it has been used in such a manner that it cannot be returned, the difference between the value of the sound property and the defective property should be assessed, and the buyer should get refund in that prortion of the amount paid by him to the seller. For example, he has purchased something for $4 and finds out that it is defective. Now the price of the thing in perfect faultless state is $8 and that of deficient is $6, the difference between these two prices will be assessed at 25%. The buyer will be paid 25% of what he actually paid, and that will be one dollar.
1004. In the following two cases the buyer cannot cancel the transaction because of defect in the property purchases by him, nor can he claim the difference between the prices:
(i) If at the time of purchasing the property, he is aware of the defect in it.
(ii) If at the time of concluding the contract, the seller says, I sell this property with whatever defect it may have. But, if he specifies a defect and says, I am selling this property with this defect, and it transpires later that it has some other defect as well, which he did not mention, the buyer can return the property due to that defect, and if he cannot return it, he can take the difference between the prices.
1005. If two persons make an agreement that they would trade with the goods jointly owned by them, and would divide the profit between themselves, the partnership will be valid.
1006. If some person enter into a partnership to share the wages from their labour, like, if a few barbers or labourers agree mutually that they would divide between themselves whatever wages they earn, that partnership is not in order. But if they enter into a mutual compromise that, say, half of what one earns will be given to the other, for a fixed period, in exchange of half of what the other earns, this transaction will be valid, and thus each will be a partner in the wages of the other.
1007. If two person enter into a partnership, on the terms that each of them would purchase a commodity on his own responsibility, and each would be responsible for the payment of its price, but would share the profit which they earn of them makes the other will be a partner in it, which means that he and his partner are responsible for the debt, then they will be considered partners in that commodity.
1008. The persons who become partners under the rules of partnership, must be adult and sane, and should have intention and free volition for becoming partners. They should also be able to exercise discretion over their properties. Hence, if a feeble-minded person who spends his wealth impudently, enters into partnership, it is not order, because such a person has no right of disposal over his property.
1009. If a condition is laid down in an agreement of partnership, that the partner who manages, or does more work than the other partner, or does more important work than the other, will get larger share of the profit, it is necessary that he should be given his share as agreed upon.
1010. Partnership has two kinds: 1. Partnership with permission, which occurs when the capital is jointly shared by the partners before the deal of partnership is made. 2. Partnership with exchange which establishes when either of the parties presents his property for partnership, and then each of them exchanges half of his property with half of the other party's property. If it is not specified as to which of the partners will buy and sell with the capital, in the partnership of permission neither of them can conclude any transcations with that capital withuot the permission of the other. But in the partnership of exchange each of them can make transaction in such a manner that the partnership is not harmed.
1011. The partner who has been given the right of discretion over the capital, should act according to the agreement of partnership. For example, if it or will purchase the property form a particular place, he should act according to the agreement. However, if no such agreement is made with him, he should conclude transactions in the usual manner, and carry on in such a way that no loss is suffered in the partnership.
1012. If a partner who transacts business with the capital of the partnership, sells and purchases things contratly to the agreement made with him, or in the case of absence of any agreement concludes transactions in a manner which is not nor mal, the transaction made by him in both the cases will be correct and valid; but if such a transaction results in a loss, or a part of wealth is squandered, then the partner who has acted against the agreement or the usual norm, will be responsible for the loss.
1013. If in a permission partnership one of the partners dies, or becomes insane, or unconscious, other partners cannot continue to exercise right of discretion over investment held in the partnership. And the same rule applies when one of them becomes feeble-minded, that is, spends his property without any consideration of Sharian, as well as custon.
1014. Compromise means that a person agrees to give to another person his own property or a part of the profit gained from it, or waives or forgoes a debt, or some right, and that other person also gives him in return, some property or profit from it, or waives his debt or right in consideration of it; and even if a person gives or another person his property to profit from it, or waives his debt or right without claiming any consideration, the compromise will be in order.
1015. It is necessary that the person who gives his property to another person by way of compromise, should be adult and sane, and should have the intention of making compromise, and none should have compelled him to make the compromise, and he should not also be feeble-minded from whom his own wealth is made inaccessible, or a bankrupt who has no right to dispose of his property.
1016. If a person wants to make a compromise with another person in respect of the debt which he owes, or in respect of his right, the compromise will be valid only if the opposite person agrees to it. But, if he wants to faorgo the debt or right owed to him, the acceptance by the opposite person is not necessary.
1017. If a debtor knows the amount he owes, but the creditor does not know and makes compromise with the debtor for an amount less than what is owed to him, like, if the creditor has to receive $50 but he unknowingly makes a compromise for $10, the balance of $40 is notHalal (allowed) for the debtor, except that he himself tells the creditor what he actually owes him, and seeks his agreement. Alternatively, the debtor should be sure that even if the creditors had known the exact amount of the debt, he would have still settled for that lesser amount.
1018. As long as the buyer and the seller do not leave the place where a transaction was concluded, they can cancel the transaction. Also, if a buyer purchases an animal, he has the right to cancel the transaction within three days. And similarly, if the buyer does not pay within three days, for the commodity purchased by him, and dose not take delivery of the commodity, the seller can cancel the transaction, as stated in rule no. However, one who makes a compromise in respect of some property, does not possess the right to cancel the compromise in these three cases. However, if the other makes unusual delay in delivering the property over which the compromise was reached, or if it has been stipulated that the property will be delivered immediately, and the opposite party does not act according to this condition, the compromise can be cancelled. And similarly, compromise can also be cancelled in other cases which have been mentioned in connection with the rules relating to purchase and sale, except in the case when one of the two parties in compromise has been defrauded, in which the compromise can not be cancelled if the compromise is for ending the quarrel; and even in other conditions, the defrauded person cannot, as an obligatory precaution cancell the compromise.
1009. A compromise can be cancelled if the thing received by means of compromise is defective. However, it is a matter of Ishkal, if the person concerned desires to take the difference of the price between the defective thing and the one without defect.
1020. If a person makes a compromise with another person with his property and imposes the condition that after his death the other person will, for example, make that property Mawqufah, and that person also accepts this condition, he should carry it out.
1021. The person who gives something on lease, as well as the person who takes it on lease, should be adult and sane, and should be acting on their free will. It is also necessary that they should have the right of discretion over the property. Hence, a feeble-minded person who does not have the right of disposal or discretion over his property, his leasing out anything or taking anything on lease is not valid. The same applies to a bankrupt person, in the wealth over which he has no right of discretion. Of course, such a person can give himself for hire.
1022. If a person takes a house, shop or room on lease, and the owner of the property imposed the condition that only he (the lessee) can utilise it the lessee cannot sublet it to any other person for his use, except that the new lease is such that its advantage devolves on the lessee himself, like, if a woman takes a house or a room on lease, and later marries, and gives the room or house on lease For her own residence to her husband. And if the owner of the property does not impose any such condition, the lessee can lease it out to another person, but, as a precaution, he should seek the permission of the owner before giving it on lease. And if he wishes to lease it out for a higher amount in cash or kind, he can do so, if he has carried out some work on it, like, white washing or renovation, or if he has suffered some expenses in looking after the property.
1023. If a person who is hired on wages, lays down a condition that he will work for the hirer only, he (the hirer) cannot lease out his service to another person, except in the manner mentioned in the foregoing rule. And if the hired person does not lay down any such condition, the hirer can lease out his services to another, but he cannot charge more than the agreed wage for the hired person. Similarly, if he himself accepts employment and then hires someone to do the task, he cannot pay him less than what he will receive himself, unless he joins that hired person in completing some of his work.
1024. If a person takes or hires something other than a house, a shop, a room, a ship, or a hired person, say, he hires a land on lease, and its owner does not lay down the condition that only he himself can utilise it, and the lessee leases it out to another person on a higher rent, it will be a matter of Ishkal.
1025. If a person takes for example, a house or a shop on lease for one year, on a rent of one hundred Toomans, and uses half portion of it himself, he can lease out the remaining half for one hundred Toomans. However, if he wishes to lease out the half portion on a rent higher than that on which he has taken the house, or shop on lease, like, if he wishes to lease it out for hundred and twenty Toomans, he can do it only if he has carried out repairs etc. in it.
1026. The property which is given on lease, should fulfil certain conditions:
(i) It should be specific. Hence, if a person says to another, I have given you one of my houses on lease’, it is not in order.
(ii) The person talking the property on lease should see it, or the lessor should give its particulars in a manner which gives full information necessary about it.
(iii) It should be possible to deliver it. Hence, leasing out a horse which has run away, and the hirer can not possess it, will be void. However, if the hirer can manage to get it, the lease will be valid.
(iv) Utilisation of the property should not be by way of its destruction or consumption. Hence, it is not correct to give bread, fruits and other edibles on lease for the purpose of eating.
(v) It should be possible to utilise the property for the purpose for which it is given on lease. Hence, it is not correct to give a piece of land on lease for farming, when it does not get sufficient rain water, and is also not irrigated by cancel water.
(vi) The thing which a person gives on lease should be his own property, and if he gives the property of another person on lease, it will be correct only it its owner agrees to it.
1027. The utilisation of the property given on lease causes four conditions:
(i) That it should beHalal (allowed). Than if a property is for Halal (allowed) uses only, or it is stipulated that it should be used for Halal (allowed) purposes, or before concluding the contract the parties agree to use it for Halal (allowed) purposes, and the contract is based on that, the contract will be void. Hence, leasing out a shop for the sale or storage of Alcoholic drinks, or providing transportation by leasing for it, is void.
(ii) That doing the act or giving that service free of charge should not be obligatory in the eyes of Shariah. Therefore, as a precaution it is not permissible to receive wages for teaching the rules ofHalal (allowed) and Halal (allowed), or for the last ritual services to the dead, like washing it, shrouding atc.. And as a precaution paying money in lieu of the services done should not be deemed futile in public.
(iii) If the thing which is being leased out can be put to several uses, then the use permissible to the lessee should be specified. For example, if an animal, which can be used for riding or for carrying a load is given on hire, it should be specified at the time of concluding the lease contract, whehther the lessee may use it for riding or for carrying a load, or may use it for all other purposes.
(iv) The nature and extent of utilisation should be specified. In the case of hiring a house or a shop, it can be done by fixing the period, and in the case of labour, like that of a tailor, it can specified that he will sew and stitch a particular dress in a particular fashion.
1028. If the period of lease is not specified, and the lessor says to the lessee, At any time you stay in the house you will have to pay rent at the rate of $10 per month, the lease contract is not in order.
1029. If the owner of a house says to the lessee, `I have leased out this house to you for f10 per month`, or says, ~I hereby lease out this house to you for one month on a rent of $10, and as long as you stay in it thereafter the rent will be $10 per month ~, if the time of the commencement of the period of lease was specified or it was known, the lease for the first month will be proper.
1030. If a person has leased out something, he cannot claim its rent until he has delivered it. And if a person is hired to perform an act, he cannot claim wages until he has performed that act, except in the cases where advance payment of wages is an accepted norm, like deputyship for Åajj.
1031. If a lessor delivers the leased property, the lessee should pay the rent, even if he may not take the delivery, or may take the delivery but may not utilise it till the end of the period of lease.
1032. If a person is hired to perform a task on a particular day against wages, and gets ready on that day to perform the task, the person who hired him should pay him the wages, even if he may not assign that task to him. For example, if a tailor is hired to sew a dress on a particular day, and he gets ready to do the work, the hirer should pay him the wages even if he may not provide him with the cloth to sew, irrespective of whether the tailor remains without work on that day or alternatively does his own or somebody else's work.
1033. If it transpires after the expiry of the period of lease, that the lease contract was void, the lessee should give the usual rent of that thing to the owner of the property. For example, if a person takes a house on lease for one year on a rent of $100, and learns later that the lease contract was void, and if the normal current rent of the house is $50,he should pay $50. And if its normal current rent is $200, and the person who leased it out was its owner, or his agent, and was aware of the current rate of rental, it is not necessary for the lessee to give him more than $100. But if a person other than these gave it on lease, the lessee should pay $200. And the same order applies, if it is known during the period of lease, that the lease contract is void in relation to the outstanding rent for the past period.
1034. If a thing taken by a person on lease is lost, and if he has not been negligent in looking after it nor extravagant in its use, he is not responsible for the loss. Also, if, for example, a coth given to a tailor is damaged or destroyed, when the tailor has not been extravegant, and has also not shown negligence in taking care of it, he need make any replacement.
1035. If an artisan or a tailor loses the thing taken by him, he is responsible for it.
1036 If a butcher cuts off the head of an animal, and makes it Halal (allowed), he must pay its price to its owner, regardless of whether he charged for slaughtering the animal or did it gratis.
1037. If a person circumcisesa child, and as a consequence of it the child dies, or is injured, the person who circumcises is responsible if he has been careless or made a mistake, like having cut the flesh more than usual. However, if he was not careless, or did not make any mistake, and the child dies due to circumcision, or sustains an injury, he will not be responsible, provided that, he had not been consulted earlier about the possible injury, nor was he aware that the child would be injured.
1038. If a doctor gives medicines to a patient with his own hands, or prescribes a medicine for him, and if the patient sustains harm or dies because of taking that medicine, the doctor is responsible, even if he had not been careless in treating the patient.
1039. If a doctor tells a patient, ~If you sustain harm I am not responsible’ ~, and then exercises due precaution and care in the treatment, but the patient sustains harm or dies, the doctor is not responsible.
1040. If the lessor or the lessee realises that he has been cheated, if he did not notice at the time of making the lease contract that he was being cheated, he can cancel the lease contract as explained in the rule no. However, if a condition is laid down in the contract of lease, that even if the parties are cheated, they will not be entitled to cancel the contract, they cannot cancel it.
1041. If a person takes something on lease, and during the period of lease it becomes so impaired that it is not fit for the required use, the remaining lease contract will be void, and the lessee can cancel the lease for the past period also. And for that period, he may pay usual rent.
1042. If an employer appoints a contractor to recruit labourers for him, and if the contractor pays the labourers less than what he receives for them from the employer, the excess he keeps is Halal (allowed) for him and he should return it to the employer. And if the contraetor is givena full contract aby complate a builiding, and is authorised to either construct it himself or give a sub-contract to another party, if he joins with the other party in doing some work, and then entrusting him to do the remaining work against lower payment than what he has collected from the employer, the surplus with him will beHalal (allowed) for him.
1043. Ju`alah means that a person promises that if a particular work is completed for him, he will give a specified amount for it. For example, he declares that if anyone recovers his lost property, he will give him $10. One who makes such a declaration is called Ja`il, and the person who carries out that work is called ~Amil~. one of the differences between Ju`alah and hire is that, in the case of hire, the hired person is bound to do the job after the agreement, and the hirer becomes indebted to the hired person for his wages, whereas in the case of Ju`alah, the person who agrees to do the job is at liberty to abandon it if he so wishes; and before he compltes the job assigned, the person who declared the reward or payment does not become indebted to him.
1044. A person who declares the payment or reward should be adult and sane, and should have made it with his free will and intention, and should have the right of disposal and discretion over his property. Therefore, the declaration by a feeble-minded person who squanders his property indiscreetly is not in order. Similarly, a bankrupt cannot declare any reward or payment from that part of wealth over which he has not right of discretion.
1045. The task for which the declaration was made by the employer should not be Halal (allowed), futile, or one of those obligatory acts which should necessarily be performed free according to Shariah. Hence, if a person declares that he will give $10 to a person who drinks alcohol, or traverses a dark passage at night without any sensible purpose, or offers his obligatory prayers, the employment will not be in order.
1046. It is not necessary for the employer for Ju`alah to specify the reward he would give with all its particulars. If the employee, in this case, is certain that he would not be taken for a stupid or foolish person if he undertook the assignment, it is sufficient. For example, if the employer in Ju`alah tells a person that if he sells a particular stock or goods for more than, say, ten dollars, whatever is the excess will be his, this from of Ju`alah is valid. Similarly, if he says that whosoever finds his horse, that person will own half of it, or that person will be awarded ten kilos of wheat, Ju`alah will be in order.
1047. If a person does not at all mention the amount of reward which he would give for his work for example, if he says, ~I shall give money to the person who finds out my son ~, and does not specify the amount of money, and if some one performs the task, he should pay him according to what is customarily paid for such task.
1048. If the person wishes to cancel the Ju`alah agreement after the employee has started work, it is a matter of Ishkal, except when they come to an agreement.
1049. A person appointed to work in Ju`alah can leave the task incomplete. However, if his failure to complete the task causes harm to the person who appointed him, he must complete it. For example, if a person says, 'If someone operates upon my eye I shall give him so much money ', and a surgeon commences the operation, and if by not completing the operation, the eye will be defective, he must complete it.
1050. If the person appointed to work in Ju`alah leaves the task incomplete, he cannot demand any reward, provided that the Ja`il declares the reward for completing the task, like when he declares that if anyone sews his dress, he will pay him $10. But if he meaned to pay some money for doing any part of the task, he should pay the money for the part done.
