a riding camel.” This too is permissible whether payment is immediate or deferred, provided he begins riding. If, however, he does not begin riding, but contracts for hire under an undertaking to provide an animal at a later date—as when someone arranges transport for Hajj outside its season—then, by analogy, this is permissible only if the hire charge is paid in advance. This is because it resembles a forward sale involving an obligation to deliver, which is permissible only if the price is paid in advance. Mālik, may Allah have mercy on him, nevertheless allowed the concession of paying a dinar as earnest money until the carrier brings his mounts, because carriers had left people stranded. He said, “How many a carrier has fled and abandoned his companions!” He therefore permitted deferring the hire charge because of this necessity, though he recommended paying most of it in advance, or about two-thirds.
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In hire under an undertaking to provide an animal, the contract does not terminate upon the animal’s death. However, once the carrier presents an animal to the hirer and he mounts it, the carrier may not replace it without his consent. If the carrier becomes insolvent, the hirer has a preferential right to the animal until he reaches his destination, provided he has taken possession of it. If the carrier has been replacing the animals ridden by the hirer, the hirer has a preferential right to whichever animal he was riding on the day insolvency was declared. Even if he had dismounted that day and the animal had been taken out to pasture, this does not prevent him from having priority over the creditors with respect to it. Ibn al-Qāsim stated this in Sahnūn’s transmission in the Book of Debtors.
Muhammad ibn al-Mawwāz criticized this position of Ibn al-Qāsim, saying that the hirer should have a preferential right to the animal only if it was specifically designated in the contract. This is the meaning of the statement attributed in the book to someone other than Ibn al-Qāsim: “Hiring a specified riding camel is not like hiring under an undertaking to provide one.” It has also been interpreted as referring to their disagreement over the hire, since both issues precede this statement, and the aforementioned words could refer back to either of them.
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If, however, the carrier becomes insolvent before the hirer takes possession of the animal under a contract involving an undertaking to provide one, the hirer ranks equally with the other creditors. His proportionate share is calculated according to the value of the hire on the day the assets are apportioned, not its value on the day the hire contract was made. Whatever share he receives