SSRN Id2017140 PDF

1
‫ﺑﺴﻢ ﷲ اﻟﺮﺣﻤﻦ اﻟﺮﺣﯿﻢ‬

‫ﻋﻠﯽ رﺳﻮﻟہ اﻟﮑﺮﯾﻢ‬
ٰ ‫ﻧﺤﻤﺪه و ﻧﺼﻠﯽ و ﻧﺴﻠﻢ‬
What is Ijarah?
Justice (r) Dr. Munir Ahmad Mughal
http://ssrn.com/author=1697634
Ijarah (‫ )اﺟﺎرة‬is an Arabic word. Its root

letters1 are Alif, Jim and Ra (‫ر‬+‫ج‬+‫اﺟﺮ = )ا‬
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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/‫ ﺣﺮوف ھﺠﺎء‬of Arabic. Out of them three are called
huruf ìllat/‫ﺣﺮوف ﻋﻠۃ‬. Those are alif, wa’u and ya/‫ا۔ و۔ ی‬. Noun
(Ism/‫ )اﺳﻢ‬is either indefinite (nakirah/‫ )ﻧﮑﺮة‬or definite
(ma`rifah/‫)ﻣﻌﺮﻓۃ‬. A word singly is called Simple (Mufrad/‫)ﻣﻔﺮد‬
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
Electronic copy available at: http://ssrn.com/abstract=2017140

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(Ism Mushar+ Ism Musharun Ilayh) and Murakkab Àdadi(Ism

àdad+Ism Ma`dud).
An Indefinite noun (Ism Nakirah/‫ )اﺳﻢ ﻧﮑﺮة‬has a tanwin/‫( ﺗﻨﻮﯾﻦ‬two
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/‫( ﺗﻨﻮﯾﻦ‬sound 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/‫ )ﺣﺮﮐﺖ‬of dammah, fathah or kasrah when it becomes
definite noun.
There are seven kinds of definite noun (Ism ma`rifah/‫)اﺳﻢ ﻣﻌﺮﻓۃ‬,
namely, Ism Àlam/ ‫اﺳﻢ ﻋﻠﻢ‬, Ism Damir/‫اﺳﻢ ﺿﻤﯿﺮ‬, Ism Isharah/ ‫اﺳﻢ‬
‫اﺷﺎرة‬, Ism Mausul/‫اﺳﻢ ﻣﻮﺻﻮل‬, Ism Muàrraf billam/‫اﺳﻢ ﻣﻌﺮف ﺑﺎﻟﻼم‬,
ٰ
Ism Munada/‫ﻣﻨﺎدی‬ ‫ اﺳﻢ‬and Ism Mudaf/‫اﺳﻢ ﻣﻀﺎف‬. All other nouns
are indefinite nouns.
An Indefinite noun is of two kinds, namely, Noun of the Being
(Ism Dhat/‫ )اﺳﻢ ذات‬and Attributive Noun (Ism Sifat/‫)اﺳﻢ ﺻﻔﺖ‬.
As a gender (jins/‫ )ﺟﻨﺲ‬a Noun is either masculine
(muzakkar/‫ )ﻣﺬﮐﺮ‬or feminine (mu’annath/‫)ﻣﺆﻧﺚ‬.
As a number (àdad/‫ )ﻋﺪد‬a noun is either singular (wahid/‫ )واﺣﺪ‬or
dual (muthanna/‫ﻣﺜﻨﯽ‬
ٰ ) or plural (jam`/‫)ﺟﻤﻊ‬. As being common or
proper, a noun is indefinite (nakirah/‫ )ﻧﮑﺮة‬or definite
(ma`rifah/‫)ﻣﻌﺮﻓۃ‬. As to its construction, a noun is either abstract
(jamid/‫ )ﺟﺎﻣﺪ‬or derivative (masdar/‫ )ﻣﺼﺪر‬or 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
Electronic copy available at: http://ssrn.com/abstract=2017140

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which means reward or compensation.2 To

give (exclusive possession of) some thing to
another on payment of rent.
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/‫وزن‬, mizan/‫ﻣﯿﺰان‬
). 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 (‫ )ﻣﻔﻌﻮل‬hence they have on their last letter fatha (two
fathahs when such derivative is an indefinite noun (‫ )اﺳﻢ ﻧﮑﺮة‬and
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single fathah when it is for any reason a definite noun ( ‫اﺳﻢ‬

‫})ﻣﻌﺮﻓۃ‬.
Ajara al-rajula àla kaza/‫ﻋﻠﯽ ﮐﺬا‬
ٰ ‫اﺟﺮ اﻟﺮﺟﻞ‬: He gave reward to a
man for it. He gave wages to the person for it.
Ajara al-àzmu/ ‫=اﺟﺮاﻟﻌﻈﻢ‬The bone joined.
Ajara al-àzma/‫ = اﺟﺮاﻟﻌﻈﻢ‬He joined the bone.
Ajjara al-tina/‫ =اﺟﺮاﻟﻄﯿﻦ‬He backed the clay to make a brick.
Ajara/‫ اﺟﺮ‬means kafa’a/‫ ﮐﻔﺎء‬i.e. to reward, to recompense, to
remunerate.
Ajara/‫ اﺟﺮ‬also means kafa’a/‫ ﮐﻔﺎء‬i.e. to reward, to recompense,
to remunerate.
Ajara/‫ اﺟﺮ‬is also used in the sense of Ajjara/‫اﺟﺮ‬ ّ which means to
rent out, to let (out), lease, hire out.
Ajara/‫ اﺟﺮ‬means Istaàjara/‫( اﺳﺘﺄﺟﺮ‬shay’an) which means to
rent, hire, lease, take on lease, take a lease, or of (a thing).
Ajara/‫ اﺟﺮ‬means waddafa/‫وظﻒ‬ ّ , istakhdama/‫ اﺳﺘﺨﺪم‬which means
to employ, hire, and engage the services of.
ّ means akra’/‫ اﮐﺮاء‬which means to rent out, to let out,
Ajjara/‫اﺟﺮ‬
lease, hire out, to charter.
Ajjara Safinatan/‫ﺳﻔﯿﻨۃ‬
ً ّ means he hired a boat.
‫اﺟﺮ‬
ً
Ajjara Ta’iratan/‫طﺎﺋﺮة‬ ‫اﺟﺮ‬ّ means he hired an aeroplane.
Ajjara min al-batin/‫اﺟﺮ ﻣﻦ اﻟﺒﺎطﻦ‬ ّ means to sublet, to sub-lease,
and to underlet.
Ajura/‫اﺟﻮرة‬ُ means Qirmid/‫ﻗﺮﻣﯿﺪ‬ ِ ِ which means tile(s) backed
brick(s).
Ajrin//‫اﺟﺮ‬
ٍ means ratibun/ ٌ ‫راﺗﺐ‬
ِ which means salary, wages, pay,
emolument, and stipend.
Ajr/‫ اﺟﺮ‬also means Atàb/‫ اﺗﻌﺎب‬which means fee (s),
honorarium, remuneration.
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Ajr/‫ اﺟﺮ‬also means Ju`l/‫ﺟﻌﻞ‬ ۡ ُ , Rasm/‫رﺳﻢ‬, Nafaqah/‫ ﻧﻔﻘۃ‬, i.e. fee,

charge, rate.
Ajr/‫ اﺟﺮ‬also means Thawab/‫ﺛﻮاب‬, Jaza’/‫ﺟﺰاء‬, Mukafa’at/‫ ﻣﮑﺎﻓﺄة‬i.e.
recompense, reward requital, remuneration.
Al-Ajrul-Adna/‫اﻻدﻧﯽ‬ٰ ‫ ;اﻷﺟﺮ‬Al-haddul-Adna lil-’ujur/ ‫اﻻدﻧﯽ‬ ٰ ‫اﻟﺤﺪ‬
‫ ﻟﻸﺟﻮر‬means minimum wage(s).
Ajra/‫اﺟﺮی‬means qama bi/‫ب‬ ِ ‫ﻗﺎم‬, naffadha/‫ﻧﻔﺬ‬ ّ which means to
perform, to do, to make, to carry out, to execute, to effectuate,
and to bring about.
ٰ
Ajra /‫اﺟﺮی‬ also means jaàlahu yajri/‫ﯾﺠﺮی‬ ِ ‫ﺟﻌﻠہ‬
ٗ which means to
flow, cause to stream, flush, to run, make run, set running.
Ajral-Qisasa/‫ اﺟﺮاﻟﻘﺼﺎص‬means Auqaàlayhi/‫اوﻗﻊ ﻋﻠﯿہ‬, i.e. to
inflict or impose a punishment or a Penalty.
Ajral-kalimatu/‫ اﺟﺮاﻟﮑﻠﻤۃ‬means: sarafaha which means to inflect a
word, to decline (a noun).
Ajra lahu/‫اﺟﺮﻟہ‬
ٗ or àlayhi/‫ ﻋﻠﯿہ‬means: manaha hu/‫ﻣﻨﺤہ‬ ٗ 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/‫ اﺟﺮ ﻟہ اﻟﺤﺴﺎب‬means: qayyada lahu/‫ ﻗﯿﺪ ﻟہ‬which
means to credit with.
Ajra àlayhi’l-hisab/‫ اﺟﺮ ﻋﻠﯿہ اﻟﺤﺴﺎب‬means: qayyada àlayhi/ ‫ﻗﯿﺪ‬
‫ ﻋﻠﯿہ‬which means to debit with, charge to someone’s account.
Ajrahu majra kaza/‫ﻣﺠﺮی ﮐﺬا‬ٰ ‫اﺟﺮه‬
ٗ 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)/‫ھﺎﺗﻔﺎ‬ ً‫ اﺟﺮا اﺗﺼﺎﻻ‬means: to call,
telephone, phone, ring up, buzz, to dial.
Ajra tajrbatan/‫ﺗﺠﺮﺑۃ‬
ً ‫ اﺟﺮا‬means: to experiment, make an
experiment, to test, examine; to try; to sample.
6
ً
Ajra Tahqiqan/‫ﺗﺤﻘﯿﻘﺎ‬ ‫ اﺟﺮا‬means: to investigate, conduct or
institute an investigation, make an inquiry.
ّ
Ajra àmaliyyatan jarahiyyatan/ ً‫ﺟﺮاﺣﯿۃ‬ ّ
ً‫اﺟﺮاﻋﻤﻠﯿۃ‬ means: to
operate, to perform a surgery or a surgical operation.
ُ ‫ اﺟﺮاء‬means: to draw lots.
Ajra al-quràtu/‫اﻟﻘﺮﻋۃ‬
Ajra muhadathatin au Mubahathatin au Mushawaratin, au
mufawadatin/ ‫ اﺟﺮا ء ﻣﺤﺎدﺛۃ او ﻣﺒﺎﺣﺜۃ اوﻣﺸﺎورة او ﻣﻔﺎودة‬means: 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
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.
8
According to the Shafiì 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/‫آﺟﺮ‬
(aajir).
One who receives wages is called an
employee, a wage earner or Ajir/‫اﺟﯿﺮ‬
ِ (ajeer).
The amount of compensation paid for the
work done or services rendered is called
‘Ujrat/‫ ُاﺟﺮت‬or 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 Shariàh. 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]
     
     
     
      
      
     
12
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.
13
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
14
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:
      
      
       
15
      
        
      
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
16
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 Ùmar8
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 Daùd, (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/‫ )ﻣﺘﻦ‬of the Hadith. And the names of the
persons from start to end are called the chain (sanad/‫ )ﺳﻨﺪ‬of 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
17
(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.
18
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/‫اﺟﺎرة‬
in Ijma`:
10
Sahukani, Nayl al-Autar, vol. 5, p. 292
11
Musannaf, Àbd al-Razzaq, Hadith No.
12
Nasa’I, Sunan , Karachi, Qur’an Mahal, n.d. vol. 3, p.60.
19
All the companions of the Holy Prophet

(Peace and blessings of Allah be upon him)
unanimously held that Ijarah/‫ اﺟﺎرة‬is a lawful
contract. They themselves practiced all
lawful forms of this Contract. In the Shariàh
permissibility of Ijarah/‫ اﺟﺎرة‬has been
constructed on Istihsan/‫اﺳﺘﺤﺴﺎن‬, 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/‫ اﺟﺎرة‬is 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/‫ اﺟﺎرة‬, but Istihsan/‫اﺳﺘﺤﺴﺎن‬
exceptionally validates it on the authority of
Sunnah and Ijma`/‫اﺟﻤﺎع‬.
20
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/‫ اﺟﺎرة‬and
approved that practice.13
Kinds of Ijarah/‫اﺟﺎرة‬:
Ijarah/‫ اﺟﺎرة‬is of tow kinds, namely,-
1. Ijaratu’l-Ashya’/‫اﺟﺎرةاﻻﺷﯿﺎء‬
It means hiring of things such as houses,
shops, lands, animals and beasts etc. It is
also called Ijaratu’l-Àyn/‫اﺟﺎرةاﻟﻌﯿﻦ‬.
2. Ijaratu’l-Ashkhas/‫اﺟﺎرةاﻻﺷﺨﺎص‬
13
Al-Sarakhsi, Al-Mabsut, Vol. 15, p.74.00
21
It means hiring of services, such as to hire a

painter to paint a house. It is also called
Ijaratudh-dhimmah/‫اﺟﺎرةاﻟﺬﻣۃ‬.
The person hired for rendering services is
ِ َ who is either ajir khas , the
called ajir/‫اﺟﯿﺮ‬
employee or ajir mushtarak/‫ اﺟﯿﺮ ﻣﺸﺘﺮک‬i.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’/‫اﺟﺎرةاﻻﺷﯿﺎء‬:
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
22
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
(‫)ﺣﺮام‬.
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,
23
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/‫اﺟﺎرة‬,
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
24
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.
25
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 Àbidin, RAdd al-Muhtar, vol. 5 p.2-3.
26
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/‫ )ﻏﺎﺻﺐ‬and 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
Zaylaì, Tabyin al-Haqa’iq, Vol. 5, p.113.
27
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.
28
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
29
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
Shariàh . 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
30
and disobedience, hence

prohibited in the Shariàh.
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
31
because it is held to be a form of

worship (ìbadah). 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/‫اﺟﺎرة‬
should not comprise any
condition according to which
the rent or wages might be
paid from the article
19
ZaylaÌ, Tabyin al-Haqa’iq, vol. 5, p. 124.
32
manufactured, or wrought
upon the rental goods.
SOME OTHER RULES
CONCERNING
IJARAH/‫اﺟﺎرة‬:
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
33
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
34
hired property or
goods; and
(ii) ability of the
lessee to use the
usufruct of hired
goods.
4. Ijarah/‫ اﺟﺎرة‬is a binding and
irrevocable contract. Thus it
cannot be revoked unilaterally.
5. Unlike the sale the
Contractof Ijarah/‫ اﺟﺎرة‬canbe
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
35
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.
36
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
37
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 Shariàh
point of view. IN the Shariàh 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.
38
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.
39
IJARAH/‫ اﺟﺎرة‬IN ISLAMIC BANKS:

1. Ijarah/‫ اﺟﺎرة‬wa
Iqtina`/‫اﻗﺘﻨﺎع‬
(Hire-
purchase): It is
a combination
of leasing
moveable or
immovable
property with
granting the
lessee an
option of
eventually
acquiring the
40
object of the
lease.22
2. Ijarah/‫ اﺟﺎرة‬wa
Iqna`/‫ اﻗﻨﺎع‬is
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.
41
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
42
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.
43
4. Thus
Ijarah/‫ اﺟﺎرة‬wa
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
44
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/‫ اﺟﺎرة‬is a Contract for Usufruct for
known consideration.
 Ijarah/‫ اﺟﺎرة‬includes letting things for
hire and rendering services.
 The Subject matter of Ijarah/‫ اﺟﺎرة‬should
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
45
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/‫اﺟﺎرة‬
(leasing) practiced by the modern banks
namely, finance and operating lease.
Finance lease is objectionable from the
Shariàh 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
46
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/‫اﺟﺎرة‬.
23
Mansuri, Dr. Muhammad Tahir, Islamic Law of Contracts
and Business Transactions, Shariàh Academy, IIU, Islamabad,
2004, pp. 227-38 with minor stresses.
47
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).
48
(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. Shariàh 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 Shariàt.
          
         
            
           
           
        

Forbidden to you (for food) are: dead meat, blood, the flesh of
swine, and that on which hath been invoked the name of other
49
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 Shariàt to the new problems for which a direct
ّ is not available in both the Primary Sources.
text/‫ﻧﺺ‬
50
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/‫ ﻗﯿﺎس‬an Ijarah/‫اﺟﺎرة‬
seems invalid as in which the thing
contracted is advantage
(manfaàt/‫ )ﻣﻨﻔﻌﺖ‬which does not exist at
the time of contract. Rather it comes
into existence later on. And the referal
of (tamlik/‫ )ﺗﻤﻠﯿﮏ‬towards 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
51
also be wages (‘ujrat/‫ )اﺟﺮت‬in the

Contract of Ijarah/‫اﺟﺎرة‬.
User (manfàt/‫ )ﻣﻨﻔﻌﺖ‬is 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
52
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,
53
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
54
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.
55
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
56
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.
57
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.
58
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
59
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 àla mu’taminin/‫ﻣﺆﺗﻤﻦ‬ ٍ ‫ﻋﻠﯽ‬
ٰ ‫)ﻻ ﺿﻤﺎن‬.
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/‫اﺟﺎرة‬
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.
60
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.
61
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/‫ اﺟﺎرة‬is
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.
62
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)
63
is only uptil three days. [Àbdur Razzaq transmitted it on

the authority of Anas; and DarQutani has transmitted it on
the authority of Ibn Ùmar.
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
64
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
65
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.
66
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
67
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
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.
68
(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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1

‫ﺑﺴﻢ ﷲ اﻟﺮﺣﻤﻦ اﻟﺮﺣﯿﻢ‬

Ijarah (‫ )اﺟﺎرة‬is an Arabic word. Its root

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(Ism Mushar+ Ism Musharun Ilayh) and Murakkab `Adadi(Ism

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which means reward or compensation.2 To

Mujarrad. That is it is simple three lettered noun. If it has any

single fathah when it is for any reason a definite noun ( ‫اﺳﻢ‬

Ajr/‫ اﺟﺮ‬also means Ju`l/‫ﺟﻌﻞ‬ ۡ ُ , Rasm/‫رﺳﻢ‬, Nafaqah/‫ ﻧﻔﻘۃ‬, i.e. fee,

It means lending of some object to some

Ajir means `Amilun bi Ujratin i.e. employee, wage earner,

According to the Shafi`i School Ijarah is a

work is called employer or Payer of wages

other business of cheating or

        

       

Say: The things that My Lord hath indeed

Allah, for which He hath given no

     

     

     

      

      

     

O ye who believe! Intoxicants and

3. The rent or compensation must be

The authority in support of Ijarah is

      

       

       

       

     

Let the women live (in 'iddat) in the same

if they carry (life in their wombs), then

      

      

       

      

        

      

Said one of the (damsels): "O My

wilt find me, indeed, if Allah wills, one

(Allah’s pleasure be upon both of them) that

When any one from among you engages a

All the companions of the Holy Prophet

Imam Sarakhsi stating the lawfulness of the

It means hiring of services, such as to hire a

property remains the ownership of the

but the liabilities referable to use of the

houses”, the contract would be invalid

that it should not be hired out for more than

is for cultivation or construction of

such purpose is specified in the

14. A property jointly owned by two or

and disobedience, hence

because it is held to be a form of

effective from January 1,

What is Finance Lease?

maintenance and insurance. The lessee has

approximate useful life of the item and that

IJARAH/‫ اﺟﺎرة‬IN ISLAMIC BANKS:

time ranging from a few days to a few