Kitab al-Ijarah – Sharh al-Lum’ah


Last Updated: 10/10/2018

Book of Renting

كتاب الإجارة

(الإجارة وهي العقد على تملك المنفعة المعلومة بعوض معلوم) فالعقد بمنزلة الجنس يشمل سائر العقود، وخرج بتعلقه بالمنفعة البيع والصلح المتعلق بالأعيان، وبالعوض الوصية بالمنفعة، وبالمعلوم إصداقها إذ ليس في مقابلها عوض معلوم وإنما هو البضع ولكن ينتقض في طرده بالصلح على المنفعة بعوض معلوم فإنه ليس إجارة بناء على جعله أصلا.

(It is a contract [which results in] owning a known benefit in return of [something with] value)[1] and the word “contract” is like a genus that includes all types of contracts. By adding the word “benefit” [to the definition] contracts of sale and [a type of] reconciliation which is restricted to physical entities are excluded,[2] and with the word “in return” the will dictated for a benefit [is excluded],[3] and with the word “known” [the benefit] is prevented from being given as a dowry, because there is no known counter-value in return, rather the return is the buḍ’.[4]However, this definition is not exclusive of a reconciliation on a benefit in return of a known counter-value, as it is not a rent, presuming that reconciliation is an independent contract on its own.[5]

(وإيجابها آجرتك، وأكريتك، أو ملكتك منفعتها سنة) قيد التمليك بالمنفعة، ليحترز به عما لو عبر بلفظ الايجار والاكراء فإنه لا يصح تعلقه إلا بالعين فلو أوردهما على المنفعة فقال: آجرتك منفعة هذه الدار مثلا لم يصح، بخلاف التمليك، لأنه يفيد نقل ما تعلق به فإن ورد على الأعيان أفاد ملكها وليس ذلك مورد الإجارة، لأن العين تبقى على ملك المؤجر فيتعين فيها اضافته إلى المنفعة، ليفيد نقلها إلى المستأجر حيث يعبر بالتمليك.

(Its offering is conducted [by saying] I rent out to you[6], or I lease out to you[7], or I give you ownership[8] of its benefit for a year) the author has conditioned the verb-tense for giving in possession with benefit in order to clarify that if one uses the word rent and lease then those are not correctly used except on a physical entity.[9] So if one uses those two words on a benefit and says: ‘I rent out to you the benefit of this house’ for example, it would not be correct. Unlike giving possession, as it conveys a transfer of [the entity] with which [the benefit] is attached and if it is used upon a physical entity it will signify ownership and it is no longer a rent, because [in a rent] the physical entity remains under the ownership of the renter. Thus, the phrase must be extended with a mentioning of the benefit so that the benefit can be transferred over to the tenant when the phrase of ownership is used in the offer.

[1] This benefit could be attached to something like a house or an animal, where the former’s benefit is in giving it as a residence while the latter can be used for traveling, or it could be attached to a human. In the case of humans, one can rent their skills out, such as sewing, constructing and so on, for a period of time to someone else. For it to be considered a true rental contract the person renting has to give something of value in return, such as money.

[2] Reconciliation (ṣulḥ) can either happen on a physical entity or on a benefit. The definition thus far only excludes those instances of reconciliation where a physical entity was involved.

[3] For example, if one were to write in their will that ‘so and so can reside in my house for 2 years after my death’. In this case a benefit is owned by the person residing in the house, but they did not have to give anything of value in return.

[4] For example, if one were to give the benefits of a house as a dowry to a woman, that would not be considered a rental contract. The word buḍ’ has been used in three meanings in the Arabic language, namely the marriage contract, the vulva, and sexual intercourse. Over here the third meaning is intended and what is being implied is that when a man gets married, he is not sure as to how much sexual pleasure will be derived during the course of the marriage. It could be till the end of one’s life, which is an unknown number, or perhaps some medical condition may prevent it altogether etc. So, although a dowry is being given in return for sexual intercourse, the nature of this sexual intercourse is unknown.

[5] There is debate where reconciliation is an independent contract to begin with. The popular view is that it is an independent contract, but al-Shaykh al-Ṭūsī believed it to be an instance of any one of the other established contracts. In this case, it would be an instance of rent.

[6] Ajraytuka

[7] Akraytuka

[8] Mallaktuka from the verbal-noun Tamlīk.

[9] The commentator is explaining why the author added “of its benefit” when using the verb “I give you ownership”. He says that the verbs I rent out or I lease out in the Arabic language are only used with physical entities. Whereas the verb “I give you ownership” can be used both with physical and immaterial entities. So, if one said, “I give you ownership of this house”, that would no longer be a rental contract rather it will be a sale. Therefore, when using this verb, one must say “I give you the benefits of this house” for whatever amount of time.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][/vc_column][/vc_row]