Section
Rent becomes settled upon completion of the work, upon the expiry of the agreed term, and likewise once the lessor offers to deliver the rented property, if a period has elapsed1 during which the benefit could have been taken but was not.
It is permissible to stipulate that the rent be paid in advance or deferred2.
If the two parties disagree about its amount, they both take an oath and the contract is cancelled; and should the lessee have already taken the benefit for which rent is due, he must pay the customary wage3.
The lessee is a trustee; he is not held liable—even if he has undertaken to accept liability—except in the case of negligence. His word is accepted that he was not negligent and that what he hired ran away or bolted, fell ill4, or died.
If the lessor has stipulated that he must not travel with it at night, during the midday rest, that he must not lag behind the caravan, or any other condition that serves a legitimate purpose, and he violates it, he is liable. Once the lease has expired5, the lessee simply withdraws his hand; he is not required to return the property or bear the cost of returning it, like a depositary.
(1) One manuscript reads mada (“has elapsed”).
(2) The word shart (condition) is omitted in manuscripts B and M.
(3) Manuscripts A and N read fa-in (“for if”).
(4) Manuscript A has the phrase “aw marida aw sharrada” (“or fell ill or strayed”), with the two clauses reversed.
(5) Ibn al-Qayyim writes: If both competitors begin the archery contest simultaneously, the sounder of the two opinions is that this is permissible, whereas the well-known Maliki view is that it is not. On the permissibility view, the stronger opinion is that no third-party participant (muhallil) is required, as reported from Abu Bakr al-Siddiq and Abu Ubayda b. al-Jarrah and adopted by our teacher and others. The prevailing position of the other three imams is that the contest is not permissible unless a muhallil is present, with various details concerning his role and purpose. We have treated these questions in detail in our larger work al-Furusiyya al-sharʿiyya and in Bayan al-istidlal ʿala butlan ishtirat muhallil al-sibaq wa-l-nidal, offering more than fifty proofs, showing the weakness of the hadith cited by those who require a muhallil, and quoting the scholars on its weakness and its irrelevance even were it sound. Ilam al-muwaqqiʿin 4/29.