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بسم هللا االرحمن االرحيیم

نحمدهه وو نصلی وو نسلم علی ررسولہہ االکريیم What is Ijarah?

Justice (r) Dr. Munir Ahmad Mughal http://ssrn.com/author=1697634

Ijarah (ااجاررةة) is an Arabic word. Its root letters1 are Alif, Jim and Ra (اا+جج+رر) = ااجر

��1 The root letters of a word in Arabic language are those letters which remain present in all formations of nouns and verbs. One of the salient features of Arabic language is that once you know the root letters you can easily know the meanings of other formations. The grammatical rules are all well set. There are 28 alphabets/حرووفف هھھھجاء of Arabic. Out of them three are called huruf `illat/حرووفف علۃ. Those are alif, wa’u and ya/اا۔ وو۔ یی. Noun (Ism/ااسم) is either indefinite (nakirah/نکرةة) or definite (ma`rifah/معرفۃ). A word singly is called Simple (Mufrad/مفردد) and when it is made of a combination of two words it is called Compund (Murakkab/مرکب ). Thus we have Murakkab Jari (Harf jar+Ism Majrur), Murakkab Idafi (Ism mudaf+Ism mudaf Ilayh), Murakkab Tausifi (Ism Mausuf+ Ism Sifat), Murakkab Ishari

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(Ism Mushar+ Ism Musharun Ilayh) and Murakkab Àdadi(Ism àdad+Ism Ma`dud). An Indefinite noun (Ism Nakirah/ااسم نکرةة) has a tanwin/تنويین (two fathah or two damma or two kasrah on its last letter according as to the case in which it falls i.e. when in nominative case having two dammah, when in accusative case having two fathah and when in genitive or governed case having two kasrah) . The tanwin/تنويین (sound of nun sakin, which is shown by putting the second dammah, fathah or kasrah) on the last letter of a word drops or goes of and there remains only a single mark (harkat/حرکت) of dammah, fathah or kasrah when it becomes definite noun. There are seven kinds of definite noun (Ism ma`rifah/ااسم معرفۃ), namely, Ism Àlam/ ااسم علم, Ism Damir/ااسم ضميیر, Ism Isharah/ ااسم ,ااسم معرفف بالالمم/Ism Muàrraf billam ,ااسم موصولل/Ism Mausul ,ااشاررةةIsm Munada/ااسم مناددیی and Ism Mudaf/ااسم مضافف. All other nouns are indefinite nouns. An Indefinite noun is of two kinds, namely, Noun of the Being (Ism Dhat/ااسم ذذااتت) and Attributive Noun (Ism Sifat/ااسم صفت). As a gender (jins/جنس) a Noun is either masculine (muzakkar/مذکر) or feminine (mu’annath/مؤنث). As a number (àdad/عددد) a noun is either singular (wahid/ووااحد) or dual (muthanna/مثنی ) or plural (jam`/جمع). As being common or proper, a noun is indefinite (nakirah/ رةةنک ) or definite (ma`rifah/معرفۃ). As to its construction, a noun is either abstract (jamid/جامد) or derivative (masdar/مصدرر) or derived (mushtaq/مشتق). In an Ism there are three sound letters at the minimum and five sound letters at the maximum. These letters are called huruf Asli. Where an Ism has three huruf Asli it is called Thulathi




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which means reward or compensation.2 To give (exclusive possession of) some thing to another on payment of rent.

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Mujarrad. That is it is simple three lettered noun. If it has any additional letter (harf za’id) it is called Thulathi mazid fihi. That is a three lettered noun with additional letters. Its three letters are the roots and the extra letters are additional letters. Thus there is Rubaì Mujarrad and Rubaì Mazid fih. And Khumasi Mujarrad and Khumasi mazid fih. The Arab Grammarian have set a Balance. In one of its scale is kept the fa, àyn and lam and in the other scale the letters of the word. This is termed as weighing or balancing in the scale (wazn/ووززنن, mizan/ميیزاانن ). The letters fa,àyn and lam are huruf asli and letters other than them are huruf za’idah. Grammarians have set six abwab (gates) for thulathi Mujarrad and those are as under:

1. Bab of Nasara/ Yansuru/Nasran; 2. Bab of Daraba/ Yadribu/Darban; 3. Samià/Yasmaù/Samàn; 4. Fataha/Yaftahu/Fathan; 5. Hasiba/ Yahsibu/Hasban; and 6. Karuma /yakrumu/karman.

It comes from the two Abwab, namely,- (i) Nasara/Yansuru/Nasran; and (ii) Daraba/Yadribu/Darban. Its Ism Masdar is: Ajran, Ijaratan. {All derivative nouns are accusative (مفعولل) hence they have on their last letter fatha (two fathahs when such derivative is an indefinite noun (ااسم نکرةة) and




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single fathah when it is for any reason a definite noun ( ااسم .{(معرفۃAjara al-rajula àla kaza/ااجر االرجل علی کذاا : He gave reward to a man for it. He gave wages to the person for it. Ajara al-àzmu/ ااجراالعظم=The bone joined. Ajara al-àzma/ااجراالعظم = He joined the bone. Ajjara al-tina/ااجراالطيین= He backed the clay to make a brick. Ajara/ااجر means kafa’a/کفاء i.e. to reward, to recompense, to remunerate. Ajara/ااجر also means kafa’a/کفاء i.e. to reward, to recompense, to remunerate. Ajara/ااجر is also used in the sense of Ajjara/ااجر which means to rent out, to let (out), lease, hire out. Ajara/ااجر means Istaàjara/ااستأجر (shay’an) which means to rent, hire, lease, take on lease, take a lease, or of (a thing). Ajara/ااجر means waddafa/ووظظف , istakhdama/ااستخدمم which means to employ, hire, and engage the services of. Ajjara/ااجر means akra’/ااکرااء which means to rent out, to let out, lease, hire out, to charter. Ajjara Safinatan/ااجر سفيینۃ means he hired a boat. Ajjara Ta’iratan/ااجر ططائرةة means he hired an aeroplane. Ajjara min al-batin/ااجر من االباططن means to sublet, to sub-lease, and to underlet. Ajura/ااجوررةة means Qirmid/قرميید which means tile(s) backed brick(s). Ajrin//ااجر means ratibun/ ررااتب which means salary, wages, pay, emolument, and stipend. Ajr/ااجر also means Atàb/ااتعابب which means fee (s), honorarium, remuneration.




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Ajr/ااجر also means Ju`l/جعل , Rasm/ررسم, Nafaqah/نفقۃ , i.e. fee, charge, rate. Ajr/ااجر also means Thawab/ثواابب, Jaza’/جزااء, Mukafa’at/مکافأةة i.e. recompense, reward requital, remuneration. Al-Ajrul-Adna/ااألجر ااالددنی ; Al-haddul-Adna lil-’ujur/ االحد ااالددنی .means minimum wage(s) لألجوررAjra/ااجرییmeans qama bi/قامم بب , naffadha/نفذ which means to perform, to do, to make, to carry out, to execute, to effectuate, and to bring about. Ajra /ااجریی also means jaàlahu yajri/جعلہہ يیجریی which means to flow, cause to stream, flush, to run, make run, set running. Ajral-Qisasa/ااجراالقصاصص means Auqaàlayhi/ااووقع عليیہہ, i.e. to inflict or impose a punishment or a Penalty. Ajral-kalimatu/ااجراالکلمۃ means: sarafaha which means to inflect a word, to decline (a noun). Ajra lahu/ااجرلہہ or àlayhi/عليیہہ means: manaha hu/منحہہ i.e. to grant to, to give to, to donate to, to accord to, to award to, to bestow upon, to confer upon. Ajra lahu al-hisab/ااجر لہہ االحسابب means: qayyada lahu/قيید لہہ which means to credit with. Ajra àlayhi’l-hisab/ااجر عليیہہ االحسابب means: qayyada àlayhi/ قيید .which means to debit with, charge to someone’s account عليیہہAjrahu majra kaza/ااجرهه مجریی کذاا which means: to treat in the same manner as, put on an equal footing with, to subject to the same rules or principles, to make follow the same way as. Ajra ittisalan hatifan (bi)/ااجراا ااتصاال هھھھاتفا means: to call, telephone, phone, ring up, buzz, to dial. Ajra tajrbatan/ااجراا تجربۃ means: to experiment, make an experiment, to test, examine; to try; to sample.




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Ajra Tahqiqan/ااجراا تحقيیقا means: to investigate, conduct or institute an investigation, make an inquiry. Ajra àmaliyyatan jarahiyyatan/ ااجرااعمليیۃ جرااحيیۃ means: to operate, to perform a surgery or a surgical operation. Ajra al-quràtu/ااجرااء االقرعۃ means: to draw lots. Ajra muhadathatin au Mubahathatin au Mushawaratin, au mufawadatin/ ااجراا ء محاددثۃ ااوو مباحثۃ ااوومشاووررةة ااوو مفاووددةة means: to hold talks, to discuss, to counter, parley, to negotiate. Ajra muqabalatan maà means: to interview, have an interview with, see personally, speak personally to, to meet with, get to gather with, have a meeting with. Ijra’un means Qiyamun, Tanfizun i.e. performance, doing, making, carrying out, execution, effectuation, bringing about. Ijra’un also means: tadbirun: Àmaliyyatun i.e. measure, step, procedure, action, process. Ijra’at un qanuniyyatun means: legal procedures, legal proceedings, legal steps, legal action,\. Ittakhaza Ijra’atin means He took measures or he adopted measures or he took steps. Da’iratu Ijra’in means Execution Department, Execution Bureau. Qanun Ijra’at means law of procedures. Qawaìd al-Ijra’ati means rules of procedure. Ijra’i means Khassun bi Ijra’ati mahkamatin au Qanun: ghayru maduìyyun means: procedural, adjective. Ijra’iyy means khassun bi al-Siltati al-Ijra’iyyati: Tanfidhiyy means executive. Al-sultatu al-Ijra’yyah means the executive power, the executive. Qanunun Ijra’iyyun means procedural law, adjective law.




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It means lending of some object to some body in return for some rental against a specified period.

According to the Hanafi School Ijarah means a contract on usufruct for a known consideration.3

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Ajir means Àmilun bi Ujratin i.e. employee, wage earner, wage worker, worker, labourer, workman. Ajir means Ma`jur, Murtazaq i.e. hireling, mercenary. Ujratin means badalu Ijarin yadfaùhu al-musta’jaru lil-mu’jari i.e. rent, rental, hire. Ujratin means ratibun i.e. Salary, wages, pay, emolument, stipend. Ujratin means Atàbun i.e. fee, honorarium, remuneration. Ujratun means ju`lun, rasmun, tafaqatun i.e., fee, charge, rate. Ujratul-Barid means postage, mailing charges. Ujratu al-Safar au al-rukub means fare. Ujratuth-thakhani au an-naqli au al-hamli i.e. freight, freightage, transportation costs, porterage, carriage. [Al-Mawrid, Munir Al-Baàl Bakki, Dar al-Ìlm al-Malaiyyin, 4th ed. (1999), Beirut: p. 39 and p. 42] 3 Kasani, Bada’i` al-Sana’i`., Vol.4, p. 174; ZAylaÌ, Tabyin al-Haqa’iq vo. 5, p. 105.




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According to the Shafi`i School Ijarah is a contract on known and permissible benefit in exchange of a known return.4

According to the Maliki School Ijarah is

an alienation of lawful usufructs for a fixed charge for a fixed period. Ibn Rushd says: Ijarah resembles a sale contract whereby price and use are exchanged.5

It also includes letting things moveable and immovable for hire and rendering services such as custody of property and professional services.

It also means employment of a person to work on payment of wages for the work done. One who engages another person to ��4 Shirbini, Mughni al-Muhtaj, Vol. 2 p. 332 5 Ibn Qudamah, al-Sharh al-Kabir, Vol.4 p. 2; Ibn Qudamah , al-Mughni Vol.5 p. 398, Ibn Rushd, Bidayatul-mujtahid, Vol.2 pp. 219-220.




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work is called employer or Payer of wages to the worker so employed or an Ajir/آآجر (aajir).

One who receives wages is called an employee, a wage earner or Ajir/ااجيیر (ajeer).

The amount of compensation paid for the work done or services rendered is called ‘Ujrat/ااجرتت or Wages or Salary.

Salient Features of Ijarah:

1. The purpose of Ijarah contract is alienation of usufructs (advantages/benefits/gains) which are known and specified.

2. The benefits must be such which are permissible in the Shari`ah. Thus hiring of a house for manufacturing wine or opening a gambling or lottery or any




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other business of cheating or defrauding people or hiring a women for singing or obscene displays is unlawful and therefore against the Islamic Law. The Holy Qur’an says:

Say: The things that My Lord hath indeed forbidden are: shameful deeds, whether open or secret; sins and trespasses against truth or reason; assigning of partners to




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Allah, for which He hath given no authority; and saying things about Allah of which ye have no knowledge.

[7:33]




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O ye who believe! Intoxicants and gambling, (dedication of) stones, and (divination by) arrows, are an abomination,- of Satan's handwork: eschew such (abomination), that ye may prosper.

Satan's plan is (but) to excite enmity and hatred between you, with Intoxicants and gambling, and hinder you from the remembrance of Allah, and from prayer: will ye not then abstain?

[V: 90 and 91].

3. The rent or compensation must be specified in the Contract.

4. The period of contract must be specified in the Contract.




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The authority in support of Ijarah is available in the Holy Qur’an, the Sunnah and the Ijma`:

The Holy Qur’an says:

Let the women live (in 'iddat) in the same style As ye live, according to your means: annoy them not, so As to restrict them. And




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if they carry (life in their wombs), then spend (your substance) on them until They deliver their burden: and if they suckle your (offspring), give them their recompense: and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another woman suckle (the child) on the (father's) behalf.

[65:6]

The Holy Qur’an also says:




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Said one of the (damsels): "O My (dear) father! Engage him on wages: truly the best of men for Thee to employ is the (man) who is strong and trusty"....

He said: "I intend to wed one of these my daughters to thee, on condition that Thou serve me for eight years; but if Thou complete ten years, it will be (grace) from thee. But I intend not to place Thee under a difficulty: Thou




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wilt find me, indeed, if Allah wills, one of the righteous."[28:26 and 27]

The Authority in the Sunnah (Ahadith):

In Sunan Ibn Majah6 there is a transmission7 on the authority of Hadrat Ibn `Umar8 ��6 There are six collections of Ahadith which are called Sihah Sittah. Those are (i) Sahih Bukhari, (ii) Sahih Muslim, (iii) Sunan al-Tirmidhi, (iv) Sunan Abu Da`ud, (v) Sunan Nasa’i and (vi) Sunan Ibn Majah. 7 In Arabic “Riwayat” means a transmission. It is singular. The Plural of riwayat is riwayat (transmissions). The person on whose authority it is transmitted is called a transmitter or Rawi. The plural of Rawi is Ruwat. There may be more than one rawi between the collector of the Hadith and the Holy Prophet (Peace be upon him). This is called the chain of authorities or in Arabic sanad or Isnad. It is the support whereby the Hadith travels from the Holy Prophet (Peace and blessings of Allah be upon him) down to the last person who receives it. The receiver may be a single person or more than one. The exact words of the Holy Prophet (Peace and blessings of Allah be upon him) are called the text (Matn/متن) of the Hadith. And the names of the persons from start to end are called the chain (sanad/سند) of the Hadith or the Riwayat . Muhaddithin have thus done a tremendous job to collect, preserve and further transmit the storage of Ahadith. No stone has been left unturned to keep it pure and transparent and many sciences have developed for the




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(Allah’s pleasure be upon both of them) that the Messenger of Allah (Peace and blessings of Allah be upon him) said: Make payment of a wage earner before his sweat dries up.9

Àbdur Razzaq Muhammad bin al-Hasan has transmitted on the authority of Abu Hurayrah (Allah’s Pleasure be upon him) that the Messenger of Allah (Peace and Blessings of Allah be upon him) said: ��

purpose. The Jurists of Islam therefore had a well scrutinized and authoritative material to do their job to solve the problems of the ’Ummah in the light of the Holy Qur’an and Sunnah. 8 His name is Abdullah. His father’s name is Ùmar (who was the son of al-Khattab). Both Ùmar and Àbdullah were believers and companions of the Holy Prophet (Peace and blessings of Allah be upon him) hence after the name of Ibn Ùmar it is mentioned Allah’s Pleasure be upon both of them. Four persons having their name Àbdullah are very famous among the Muhaddithin, Mufassirin and Mujtahidin. They are(i) Àbdullah bin Àbbas; Àbdullah bin Ùmar; Àbdullah bin Masùd and Àbdullah bin……..(Allah’s pleasure be on all of them). 9 Sunan, Ibn Majah, Hadith No. ; Shaukani, Nayla l-Autar, vol.5 p. 292.




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When any one from among you engages a person on wages (hires a person) he must inform him of the wages he is to receive.10

The worker is free in his choice to accept such amount of wages or reject it.11

Hadrat Sa`d bin Abi Waqqas (Allah’s pleasure be upon him) reported that in the age of the Holy Prophet (Peace and blessings of Allah be upon him) the owners of the land used to let their lands on rent.12

In our modern age vacancies concerning various posts and jobs are advertised. What is there position? Is it permissible to do so?

Authority on permissibility of Ijarah/ااجاررةة in Ijma`: ��10 Sahukani, Nayl al-Autar, vol. 5, p. 292 11 Musannaf, `Abd al-Razzaq, Hadith No. 12 Nasa’I, Sunan , Karachi, Qur’an Mahal, n.d. vol. 3, p.60.




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All the companions of the Holy Prophet (Peace and blessings of Allah be upon him) unanimously held that Ijarah/ااجاررةة is a lawful contract. They themselves practiced all lawful forms of this Contract. In the Shari`ah permissibility of Ijarah/ااجاررةة has been constructed on Istihsan/ااستحسانن, which is a departure form a rule of precedent. According to a general rule of Islamic Law of contract, an object which does not exist at the time of contract, may not be sold. However, Ijarah/ااجاررةة is permissible and valid despite its being sale of the usufructs, which are non existent at the time of the Contract. Analogy will this invalidate Ijarah/ااجاررةة , but Istihsan/ااستحسانن exceptionally validates it on the authority of Sunnah and Ijma`/ااجماعع.




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Imam Sarakhsi stating the lawfulness of the Contract writes:

The contract and dealings practiced before Islam are valid practices for us also in the absence of any text disapproving them. The Holy Prophet (Peace and blessings of Allah be upon him) was sent as Prophet and he saw the people practicing Ijarah/ااجاررةة and approved that practice.13

Kinds of Ijarah/ااجاررةة:

Ijarah/ااجاررةة is of tow kinds, namely,-

1. Ijaratu’l-Ashya’/ ااالشيیاءااجاررةة

It means hiring of things such as houses, shops, lands, animals and beasts etc. It is also called Ijaratu’l-`Ayn/ االعيینااجاررةة .

2. Ijaratu’l-Ashkhas/ صصاخااالشااجاررةة ��13 Al-Sarakhsi, Al-Mabsut, Vol. 15, p.74.00




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It means hiring of services, such as to hire a painter to paint a house. It is also called Ijaratudh-dhimmah/ االذمۃااجاررةة .

The person hired for rendering services is called ajir/ااجيیر who is either ajir khas , the employee or ajir mushtarak/ااجيیر مشترکک i.e. independent contractor. Ajir Khass renders services for one person for a fixed period while ajir mushtarak works for a large number of people like tailor, laundryman, and ironsmith.

Conditions for Ijaratu’l-Ashya’/ااجاررةةااالشيیاء:

1. The subject of ijarah must have a valuable use. Therefore things having no usufruct at all cannot be leased.

2. It is necessary for a valid contract of lease that the corpus of the leased




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property remains the ownership of the seller, and only its usufruct is transferred to the lessee. Therefore, the lease cannot be affected in respect of money, eatable, fuel and ammunition, because their use is not possible unless they are consumed. If any thing of this nature is leased out it will be deemed to be a loan and all the rules concerning the transaction of loan shall accordingly apply. Any rent charged on such lease shall be treated as an interest charged on a loan which is unlawful .(حراامم)

3. As the corpus of the leased property remains the ownership of the lessor, all the liabilities emerging from the ownership shall be borne by the lessor,




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but the liabilities referable to use of the property shall be borne by the lessee.

Example: A has leased his house to B. The taxes referable to the property shall be borne by A, while television, radio, telephone, electricity, water, sui gas and other utility bills shall be borne by B, the lessee.

4. The subject matter of Ijarah/ااجاررةة, namely, the usufruct should be known, and identified. There should not be any vagueness about the usufructs, which may lead to discord and dispute among the parties. The lessor should specifically mention the subject matter. It is not permissible to lease out an unspecified thing. Thus is a person says: “I rented you on one of these two




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houses”, the contract would be invalid because the subject-matter in this case is unknown and unidentified.14

5. The leasing period should be fixed, whether, it is long or short. It is the view point of the majority of the fuqaha’. Imam Malik on the other hand maintains that a long period for the use of usufructs is not advisable, because it may cause dispute and tussle.15

As regards property of orphans, the Hanafi jurists hold that long period of lease if these properties is not permissible so that lessee may not claim his ownership over them because of long possession. They propose

��14 Kasani, Bada’i` al-Sana’i`, Vol. 4, p. 80. 15 Shirbini, Mughni al-Muhtaj, Vol. 2 p. 349, Ibn Qudamah, al-Mughni, Vol. 5 p. 401.




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that it should not be hired out for more than three years.16

6. The subject-matter should be something that can be actually delivered. Thus, the renting out a stray animal is not permitted.

7. The object and purpose of the contract should be lawful. Thus, it is not permissible to hire a house for the purposes of gambling or manufacturing wine.

8. The article to be hired should be physically fit for hire.

9. In the contract of hiring of land, the use of land should be specified whether it

��16 Ibn `Abidin, RAdd al-Muhtar, vol. 5 p.2-3.




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is for cultivation or construction of building.

10. If a beast of burden is hired for carrying a burden, the quantity and quality of burden, the destination and the period for which it is required should be stated. If the lessee loads with the burden more than the specified, he will be called to compensate. Similarly, if he uses the animal in an unusual manner, which causes its death, he will be regarded a usurper (ghasib/غاصب) and called for indemnification.17

11. The lessee cannot used the asset for any purpose other than the purpose specified in the lease agreement. If no

��17 Zayla`i, Tabyin al-Haqa’iq, Vol. 5, p.113.




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such purpose is specified in the agreement, the lessee can use it for whatever purpose it is used in the normal course. However, if he wishes to use it for abnormal purpose, he cannot do so unless the lessor allows him in express terms.

12. The lessee is liable to compensate the lessor for every harm to the lessed asset cause by misuse or negligence on the part of the lessee.

13. The leased asset shall remain in the risk of the lessor throughout the lease period in the sense that any harm or loss caused by the factors beyond the control of the lessee shall be borne by the lessor.




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14. A property jointly owned by two or more persons can be leased out, and the rental shall be distributed between or among all the joint owners according to the proportion of their respective shares in the property.

15. A joint owner of a property can lease his proportionate share to his co-sharer only and not to any other person.

16. Rent to be paid should be a lawful thing and known.

17. Rent should not be paid in the same genus or specifics. Thus, a house cannot be rented in exchange of house. The condition is peculiar to the Hanafi School.18

��18 Kasani , Bada’i` al-Sana’i`, vol. 4, p. 194




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Conditions of Ijaratul-Ashkhas:

1. In the Contract of hiring services, the work required to be performed should be specifically fixed such as the carriage of goods, or building house etc.

2. Performance or work should not be prohibited in the Shari`ah . Thus it is not permitted to hire a magician to teach magic, or a singer for the purpose of singing. Similarly it is not permissible to hire the services of a person to kill another person or torture him, because they are acts of sin




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and disobedience, hence prohibited in the Shari`ah.

3. The service required to be rendered should not be a mandatory duty. It is, therefore, not allowed for a person to pray, perform Hajj, to teach the Holy Qur’an because they are mandatory duties, so the worker is not entitled to wages if he is hired for any of them.

As regards charging for teaching the Holy Qur’an or the principles of faith, accepted rule of the Hanafi School is that no one is allowed to charge any fee for teachings these subjects




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because it is held to be a form of worship (`ibadah). This was the ruling of early jurists. The jurists of subsequent ages, when they saw that the people were reluctant to teach the Holy Qur’an gave a fatwa in favour of charging fee for teaching the Holy Qur’an. They considered it necessary in order to encourage the teaching of Islam.19

4. The Contract of Ijarah/ااجاررةة should not comprise any condition according to which the rent or wages might be paid from the article

��19 Zayla`I, Tabyin al-Haqa’iq, vol. 5, p. 124.




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manufactured, or wrought upon the rental goods.

SOME OTHER RULES CONCERNING IJARAH/ااجاررةة:

1. The property hired is a trust in the hands of the lessee. Thus, if it is destroyed without any negligence on the part of the lessee, he will not be responsible for that loss or damage.

2. The lessee is required to exercise maximum care of




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property. An improper and unusual use of the property will change his status from trustee to usurper, and in case any destruction takes place, he will be liable for compensation.

3. Rent of hired property becomes due:

(i) on the attainment of usufruct of the




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hired property or goods; and

(ii) ability of the lessee to use the usufruct of hired goods.

4. Ijarah/ااجاررةة is a binding and irrevocable contract. Thus it cannot be revoked unilaterally.

5. Unlike the sale the Contractof Ijarah/ااجاررةة canbe enforced from some specified future date. Thus it is permissible to say that this contract shall be effective from some specified future date. Thus it is permissible to say that this contract shall be




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effective from January 1, 2013.

6. Ajir Mushtarak (Independent Contractor) such as tailor or schowmaker will be held accountable for the loss of the gods in his custody, regardless of whether they are destroyed by his fault or without his fault. This ruling has been given by the fuqaha’ on the ground of public interest so that the trustees and tradesman exercise greater care in safeguarding people’s properties.20

��20 Kasani, Bada’i` al-Sana’i`, vol. 4 p. 210 ; Ramli, Mughni al-Muhtaj, Vol.2 p. 35; Ibn Qudamah, al-Mughni, vol. 5, p. 487.




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What is Finance Lease?

The Finance lease is based on a contract between the lessor and the lessee for hire of a specific asset selected from a manufacturer or vendor of such assets by the lessee. The lessor retains the ownership of the asset and the lessee has possession and use of asset on payment of specified rentals over a period. Though the lessor is the legal owner, the lessee is given the exclusive rights to the use of the asset for the duration of the contract. The rentals during the fixed primary period are sufficient to amortize the capital outlay of the leasing company and provide an element of profit. The primary period is closely related to the estimated useful life of the asset and the lessee is normally responsible for all operating costs such as




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maintenance and insurance. The lessee has also the option for a secondary period of lease in which the rentals are reduced to normal amount. The period of lease is usually ranges from 5 to 15 years depending on the useful life of the asset.21

Since all the risk is borne by the lessee instead of lessor in finance lease, it makes the contract objectionable from the Shari`ah point of view. IN the Shari`ah risks of damage, and obsolescence is exclusively borne by the lessor. Besides, the leased item or equipment cannot be returned to the lessor during the primary period of lease.The lessee cannot cancel the contract even if he finds the item unuseful during the term. The fact that the rentis related to the ��21 Council of Islamic Ideology, elimination of Riba from the Economy and Islamic Modes of Financing, 1991, p. 13.




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approximate useful life of the item and that the lessor recovers the entire cost of equipment plus some profit, make this contract doubtful from Islamic point of view.

WHAT IS AN OPERATING LEASE?

An operating lease is “non-full payment” lease as rentals are insufficient to enable the lessor to recover fully the initial capital outlay. The residual value is recovered through disposal or releasing the equipment to other users. In this lease major consideration is given to the use of equipment. Unlike the finance lease system, the lessee can cancel the contract before it expires without paying any penalty. Under this arrangement the risk of damage and depreciation is borne by the lessor.




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IJARAH/ااجاررةة IN ISLAMIC BANKS:

1. Ijarah/ااجاررةة wa Iqtina`/ااقتناعع (Hire-purchase): It is a combination of leasing moveable or immovable property with granting the lessee an option of eventually acquiring the




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object of the lease.22

2. Ijarah/ااجاررةة wa Iqna`/ااقناعع is apopular mode of financing practiced by Islamic financial institutions. It is used in the following manner.

3. The financial institution rents a

��22 Nabil A. Salih, Unlawful Gain and Legitimate Profit in Islamic Law, p. 122.




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movable or immovable property to one of its clients who pay any agreedsum in instalments over an agreed period into a saving account held with the same institution. The lessor who is usually the mudarib invests these instalments in




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deposits and accrued income on such deposits, equal the aggregate amount of the then outstanding lease payments, the lease is terminated and the lessee becomes the owner of the asset.




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4. Thus Ijarah/ااجاررةة wa Iqtina` is a lease agreement combined with an obligation to the lessee to purchase the asset during the lease or at the termination of the lease.

DIRECT LEASING:

This is a mode whereby the Islamic banks allow the customers to use the capital asset owned by the banks for a limited period of




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time ranging from a few days to a few months depending upon the tupe of asset in question. In return the lessee pays a monthly or annual rental fee.

Conclusion:

Ijarah/ااجاررةة is a Contract for Usufruct for known consideration.

Ijarah/ااجاررةة includes letting things for hire and rendering services.

The Subject matter of Ijarah/ااجاررةة should be permissible thing or act.

It should be known and identified.

The rent or compensation should be specified fixed.

The property hired is held to be a trust in the hands of lessee. Thus, if it is




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destroyed without any negligence on his part, he will not be held responsible for that loss or damage.

Ajir Mushtarak(Independent Contrtactor) is held accountable for the loss of goods in his custody regardless of whether thye are destroyed by his fault or without his fault.

There are two main types of Ijarah/ااجاررةة (leasing) practiced by the modern banks namely, finance and operating lease. Finance lease is objectionable from the Shari`ah point of view because in this form of lease the risk is borne by the lessee.

Hire-purchase is a combination of leasing property and granting the lessee




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an opition of eventuality acquiring the object of the lease. It is permissible in the Shariàh.23

MODERN METHODS OF ADVERTISEMENTS OF POSTS AND THEIR POSITION IN SHARIÀT :

To advertise a post and mention the salary, pay, allowances etc, and also the qualifications required for the post is also an example of Ijarah/ااجاررةة.

��23 Mansuri, Dr. Muhammad Tahir, Islamic Law of Contracts and Business Transactions, Shariàh Academy, IIU, Islamabad, 2004, pp. 227-38 with minor stresses.




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Doing so is not repugnant24 to the Injunctions25 of Islam26. Where a firm asks a ��24 Repugnancy means contradictory to or in violation of or against. Its antonym is conformity which means in conformity with, in accordance with, to obey as ordered in letter and spirit. In the Constitution of Islamic Republic of Pakistan, 1973, its Article 227 contains provisions relating to the Holy Qur’an and Sunnah. It reads as under:

(1) All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.

Explanation:-In the application of this clause to the personal law of any Muslim sect, the expression “Qur’an and Sunnah” shall mean the Qur’an and Sunnah as interpreted by that sect.

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in the Part.

(3) Nothing in this Part shall effect the personal laws of non-Muslim citizens or their status as citizens.”

(4) 25 Injunctions in Arabic language are called Ahkam. Ahkam are of two kinds, namely, (i) Awamir (Commandments, i.e., things enjoined to be done by the human beings as ordered by Allah and the Messenger of Allah i.e. as mentioned in the Kitabullah and the Sunnah of the Messenger of Allah (Peace and blessings of Allah be upon him).




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(2) Nawahi (Prohibitions, i.e. things forbidden by Kitabullah and Sunnah Rasulullah (Peace and blessings of Allah be upon him). 26 Islam is the way of life, complete and perfect in all walks of life. Shari`ah is the whole law of Islam. It is contained in Kitabullah and Sunnah Rasulullah (Peace and blessings of Allah be upon him). Al-Qur’an (the Holy Qur’an) is Kitabullah. It is the revealed word of Allah Almighty which was sent by Allah Almighty through Hadrat Jibra’il (Peace be upon him), the Arch Angel. Sunnah (words, practices and tacit approvals of the Messenger of Allah (peace and blessings of Allah be upon him), is fully preserved in the storage of Ahadith. These two are termed as the Primary sources of all Islamic Law. Other sources (Ijma` and Qiyas etc.) are secondary and those are in the light of the Holy Qur’an and Sunnah and not making some new Shari`at.

Forbidden to you (for food) are: dead meat, blood, the flesh of swine, and that on which hath been invoked the name of other




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workman as to what pay or salary he agrees ��

than Allah. that which hath been killed by strangling, or by a violent blow, or by a headlong fall, or by being gored to death; that which hath been (partly) eaten by a wild animal; unless ye are able to slaughter it (in due form); that which is sacrificed on stone (altars); (forbidden) also is the division (of meat) by raffling with arrows: that is impiety. This Day have those who reject Faith given up all hope of your religion: yet fear them not but fear Me. This Day have I perfected your Religion for you, completed My favour upon you, and have chosen for you Islam As your religion. But if any is forced by hunger, with no inclination to transgression, Allah is indeed Oft-forgiving, Most Merciful. [5:3] Din is perfect in all respects and the Holy Qur’an has made it clear that:

Muhammad is not the father of any of your men, but (He is) the Messenger of Allah, and the seal of the Prophets: and Allah has full knowledge of all things. [33:40] The Ijtihad by the exercise of various tools is to help extending the Original Shari`at to the new problems for which a direct text/نص is not available in both the Primary Sources.




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to receive and the firm agrees to pay such salary to him; or (where a firm itself) tells a workman that such and such fixed salary will be paid to him for the job, both ways or permissible under the Islamic Law.

According to Qiyas/قيیاسس an Ijarah/ااجاررةة seems invalid as in which the thing contracted is advantage (manfa`at/منفعت) which does not exist at the time of contract. Rather it comes into existence later on. And the referal of (tamlik/تمليیک) towards a thing which is to exist in future is not valid. However, the Holy Qur’an and Sunnah both are witness to its validity.

Anything that can be a thaman (price) in the Contract of Sale (al-Bay`) can




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also be wages (‘ujrat/ااجرتت) in the Contract of Ijarah/ااجاررةة.

User (manf`at/منفعت) is sometimes known by means of period as to take a house on payment of rent for residential purpose or a price of land for agriculture. Thus the contract shall be valid for a known period whatever may be the agreed period between the parties.

And user is sometimes known by action and name. As where a person takes a cloth for dying or sewing or he took on hire an animal for bearing loads and taking it to a known distance or to use it as a ride for a known distance; and sometimes user is known by indication as one hires a labourer to




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carry a certain quantity of corn to a certain place on payment of a certain amount as wages of his labour.

For the validity of Ijarah the wages and the user both must be known. Why wages are to be known, is self evident. However, in knowing the user there is something hidden. Hence it must be disclosed and made open. This knowledge can be given by telling its period. By knowing duration the quantum of user can be known if it is not different as in the case of lease of a house or land it must be disclosed for what period such house or land is required to be used. Whatever period is agreed to the Ijarah is valid. However,




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in the matter of Auqaf a period beyond three years is not valid.

Secondly, the action must be disclosed as the cloth is being given to the dyer to colour it a specific colour, say, red, blue, green, yellow or any other specific colour. This is to avoid disputes for future. Similarly, when a cloth is given to a tailor, he must be informed of the nature and kind of sewing and stitching the coat, paint, shirt etc.

Thirdly, an indication is made that to such a distance, this thing is to be carried or transported by the carrier or loader. When a labourer sees the commodity to be loaded and carried to a certain place, the nature and extent of




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use of his services or labour becomes open and clear. This would render the contract valid.[The reason is that for the validity of any contract there must be no ignorance or concealment of any fact as to the thing to be contracted and the manner in which it is to be dealt with.].

It is valid to take on rent houses to live in, or shops to work in them. There is no need to tell the actual work to be done there. The tenant can do any business in the shop but he cannot use it as shop of a blacksmith, washer-man or grinding the flour.




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Similarly, taking land on lease or rent for agricultural purposes is valid. The lesee shall have his turn of irrigation, right of way without having made it a condition. In case of agricultural land the lessee shall disclose what crop shall he sow. He may contract to sow a crop of his own sweet-will.

Where a plot of land is taken on lease for construction of a building or planting trees in it. At the termination of lease period the lessee shall be entitled to remove the super-structure and the planted trees. He (the lessee) shall deliver the vacant possession of the land to the lessor. However, the lessor may pay the price of the uprooted trees or the super structure of




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the construction and purchase them. Parties may agree as they deem fit. Conditions can be changed or waived by mutual agreement with free consent and no taint of coercion, mala fide, or fraud.

Cattles can be hired for ride or transportation of goods. If it was hired for riding the person who is the hirer may allow anyone to ride them.

Where there is no general permission in this behalf and the tenant makes some one to ride on the animal and the animal is hurt or dies the liability of payment of compensation shall fall upon the tenant.




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Essential elements of Ijarah:

1. For an Ijarah it is essential that there must be Offer and Acceptance (Ijab and Qubul).

2. For the completion of Ijarah period can be fixed i.e. I shall join the employment on such and such date or the employer himself tell the worker so employed that he must join on such and such date.

3. The contract may be conditional as the quantum of work and pay to be given for that work and if loss is caused due to negligence such and such amount will be conducted from the wages.




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4. Fixation of period is must other wise the contract will be invalid (fasid).

5. Services to be rendered by the worker must be made clear to him.

WAGE EARNERS27 ARE TWO KINDS, NAMELY, COMMON AND SPECIFIC. ��27 Wage earners are called in Arabic language: al-Ujara. The singularof Ujara’ is ajir.A Common wage earner is called Ajir Mushtarak. Specific wage earner is called Ajir Khass. An Ajir Mushtarak is he who is not entitled to any wage till he completes the work like the dyer (al-Sabbagh), the Washer—man (al-Qassar). The article or thing in his custody is like that of trust (al-amanah). And the rule is that in the matter of al-amanah there is no guarantee and thus no liability to pay compensation in case of destruction of the property kept in his custody. This is the view of Imam Abu Hanifah (Allah’s mercy be on him). However, according to the view of Sahibayn (Allah’s mercy be on both of them) the custodian of such property shall be liable to pay compensation if the destruction took place due to his own action as the tearing of the clothe, and the slipping down of the labourer, breaking of the rope with which a loader ties the load, drowning of the boat by drawing it. All these are guaranteed but a human being is not guaranteed. Thus where a person drowned by drowining of the boat or fallen down from a ride there shall be no liability of payment of daman. Where a surgeon cut a vein




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to bring out the clotted blood or a Marker marked an animal and did not exceed the prescribed limit there shall be no liability of any daman in case of death. However, where the limits are exceeded then there shall be liability of payment of damages (daman). The basic rule is that there is no penalty over the trustee (La damana `ala mu’taminin/ال ضمانن علی مؤتمن ). An Ajir Khass is he who becomes entitled to the agreed wages when he comes on duty and remains present during the duty period. If the employer does not take any work from him even then the employee shall be entitled to wages. There is no daman on Ajir Khass of that which is destroyed while the thing is in his custody or that which is destroyed by his actions except when he commits excessiveness. In that case he shall be liable to pay the compensation. The conditions that make a Sale invalid also make an Ijarah invalid. A person who takes on wages a slave for service he cannot take him with him while going on journey except when there is previously so agreed to by the parties in the Ijarah/ااجاررةة Contract. Where a person takes a camel for putting a Mahmal on its back to carry two persons uptil Mecca it is valid. He can put on it the agreed to Mahmal. If the owner of the camel also inspects the Mahmal it is much better. Where a camel is taken on hire to carry a certain quantity of food as provision of journey and then ate some quantity of food out of it. It is permissible if he again loads an equal quantity of the consumed food on such camel.




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A common wage earner or worker is he who is not to perform the work of a particular person. Rather any person may take service from him. He is not entitled to receive wages till he completes the work. Thus a washer man will be entitled to wages after the clothes are washed, a tailor when the clothes are completely tailored, and a dyer when the cloth is dyed in the required standard colour.

A specific labour or wage earner is he who offers himself to do the job, now whether the work is obtained from him or not, he shall get his wages. For instance, a grazer was engaged to graze the goats. He shall become entitled to wages even if no work is given him.




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Concerning anything specific conditions may be levelled. In the matter of cattle considering the distance and load, fresh agreement can be made for the additional conditions.

When and How an Ijarah/ااجاررةة is broken?

Where there is any defect in the House taken on lease, the Ijarah is liable to be cancelled.

Ijara is not broken by option28 of condition (Khiyar-i-Shart) or option of seeing (Khiyar-i-Ru`yat).

��28 In Islamic Law certain options are made available to the contracting parties to avoid all sorts of fraud. Thus we find Khiyar sl-bulugh that is option of puberty. Where a Muslim who is not of the age of puberty and is married by his or her guardian he or she may exercise the right to annul such marriage on becoming of the age of puberty. There is Khayar al- Shart in the matters of Sales. This is a right that becomes available to the vendor and the vendee by making something conditional.




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Where there is no condition there is no option of condition. As against it the Khayar al-àyb and Khayar al-ru’yat become available even when there is no such condition in the contract. The Khayar-i-Shart becomes a bar for the beginning of a legal value. The Khayar-i-Ru’yat becomes a bar r against completion of the Shariàh value; and the Khayar-i- àyb becomes a bar against making a Shariàh value binding. The authority for Khayar-i-Shart is available in the text of the Hadith.

(1) Habban bin Muntafid Ansari often was cheated in buying and selling. The Messenger of Allah (Peace and blessings of Allah be upon him) gave him option and said: You should say: La Khala bati (Do not cheat me). Thereafter he did accordingly and used to purchase a thing and bring it to his home and the people informed him that it has been purchased on high price. On that he used to reply: The Messenger of Allah (Peace and blessings of Allah be upon him) has granted me option to return it.[ [Hakim, Shafiì, Bahaqi transmitted it on the authority of Ibn Ùmar; Ibn Mjah, DarQutani, Bukhari (fi Tarikhihi Ausat), ibn Abi Shaybah have transmittedit on the authority of Muhammad bin Yahya (mursalan); Tabarani has transmitted it on the authority of Ibn Ùmar (conveying its meanings); Sunan Arbaàh have transmitted it on the authority of Anas (without mentioning the word al-Khayar)]

(2) A person purchased a camel and made the sale

conditional that he will have the option to cancel it within four days days. The Messenger of Allah (Peace and blessings of Allah be upon him) said: the Khayar (option)




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is only uptil three days. [`Abdur Razzaq transmitted it on the authority of Anas; and DarQutani has transmitted it on the authority of Ibn `Umar. And a person to whom an option of condition is available he may annul or enforce the sale. Enforcement may be made even in the absence of the Seller but its annulment is not valid in the absence of the seller. Its annulment by the buyer shall be valid only in the presence of the Seller. Where a person having a right to exercise an option dies, the option shall become void and shall not transfer further to his heirs. Where a person purchased a slave on the condition that he is a cook or scribe but later on it transpired that he was not so, the buyer has the option either to buy it for a consideration of full thaman (value) or annul the sale. As for Khayar al-Ru’yat, where a person purchased a thing without having seen it, the sale is valid and he has the option to take it on payment of price or return it after seeing. But where a person sold an unseen thing he has no option to annul the sale on seeing. Khayar-i-Ru’yat is for the purchaser. The authority is available in the Hadith. The Messenger of Allah (Peace be upon him) said: Where a person purchases such thing that he had not seen, he has the option to take it or reject it after seeing it.[Dar Qutani transmittedit on the authority of Abu Hurayrah; Ibn Abi Shaybah and Bayhaqi transmitted it on the authority of Makhul (mursalan).] Another Hadith is: Hadrat Talha purchased a pieceof land from Hadrat Uthman in Basrah. People informed him that




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he had suffered loss. He replied: I have the option as I have sold a thing without seeing it. On the other hand Hadrat Talha was informed that he has purchased that piece of land on a high price. He also replied in the same words. On that Hadrat jubayr bin Mutàm decided that the right to exercise option of seeing is available to Talhah (the buyer) and not to Ùthman (the seller). [Tahawi, and Bayhaqi have transmitted it on the authority of Àlqamah bin Abi Waqqas. ] In the matter of seeing or inspection it is not essential to see the whole of the thing sold.. Rather that much seeing is sufficient whereby the state of the thing sold becomes known as in kayli and wazani goods the visible surface of the pile, outer side of the wrapped cloth, face of a male or female slave, face and back of a horse, mule or ass, ends the option as seeing of a part is like seeing of the whole. However where inside the pile there is hidden defective corn then the purchaser has the right to return the thing purchased on account of such concealed defect. This returning is by the exercise of the option of defect and not option of seeing. Where the things sold are distinct individually, then all such things are to be seen. Where a person sells a thing belonging to some other person without his permission, the Owner has the option to enforce it or cancel it. If he enforces, the seller on his behalf shall gain the satutus of his agent. This right shall be available when four things are actually existing, the seller, the buyer, the Owner and the goods sold. Before enforcement of such sale by the original owner, the buyer has no right to exercise any control over such thing even if




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Lease giver cannot break the contract for any excuse. Thus where a person gives his horse on lease, and afterwards he brings forward some excuse that he cannot go to the place where the horse is tithed. Such plea shall be of no significance. The reason is that he can send someone else there to bring the horse with himself to deliver it to the lessee.

Letting and Hiring or Ijarah (leases of lands or buildings, hiring of chattels, or services of free human beings) are all forms of the same contract, the last named being divided into two classes according as the workman lends his entire services to one person, as a domestic servant, or undertakes to perform ��

he had taken the possession. Where owner takes the price, it amounts to having given the permission from the date of actual sale.




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the same services for all who require it (as a common carrier). It is treated in all kinds as to the contract of sale of a known benefit in return for its own equivalent (no accepted by Shari’s law, the reason being that sale there even of less than the full ownership implies a transfer in perpetuity: Fath al-Qarib, p.311). It is necessary that both the advantage conveyed and the price to be paid must be definite, certain and lawful. The contract can be dissolved by the death of one or the other of the parties and other contracts may be dissolved by the judge in the event of the lessor’s bankruptcy.29

��29 Smith Mackenzie v. Tharia Topan 1, Zanzibar L.R. 24 (custom by which the landlord should ado all repairs but inapplicable to leases in perpetuation); on agricultural leases, Bartoa v. Mohamed 1, Zanzibar L.R. 335. Qutations in Islamic jurisprudence in the Modern World, Anwar Ahmad Qadri, 2nd ed. 1973, Sh. Muhammad Ashraf, Lahore, p. 326. He has relied




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What leases are not regarded as leases?

Agricultural leases on a part profit basis are regarded not as leases but as forms of partnership and they may be,-

(i) Musaqat (lease for a definite term of palms or vines, leases to water and cultivate in return for a fixed fraction of crops),

(ii) Mukhabarah (cropping lease where seed is provided by the cultivator); and

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upon Hedayah Sharh al-Bidayah al-Mubtadi, , Al-Mirghinanai, Abu Hasan, Cairo 1326-27 AH, 4 Volumes (Translation by Hamilton, Lahore , Reprint, 1953)., II, 312; Durr-ul-Mukhtar, IV, 1 f; Sharh Viqayah, IV, 835; Radd-ul-Muhtar, V, 2 , 3; Àini Sharh Kanz, III, 400; Qadi Khan, III, 2,3,f. ; Àlamgiri, IV , 577; Shafiì, al-Umm III, 252 f.; Fath-ul-Qarib, 220; Mnhaj, 218, ff.




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(iii) Mudarabah ( a cropping where the seed is provided by the landlord .30

��30 Fath-ul-Qarib, 381; Minhaj 215 ff.




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