enter so-and-so’s house: he may enter it once it is no longer owned by that person, unless he says, “this house of so-and-so,” identifying it by pointing to it. A similar distinction appears in Yahyā’s transmission in the Book of Oaths Involving Divorce, between a man swearing, “I will not enter your gardens,” and swearing, “I will not enter these gardens.” In ʿĪsā’s transmission from Ibn al-Qāsim in the same book, however, a man who swears not to employ so-and-so’s slave may not employ him after his owner frees him, even if he did not say, “this slave.” By implication, this report introduces a difference of opinion into the question of hire. The first position, however, is the well-known, expressly stated position.

Section

This applies when both parties agree and acknowledge that the terms were left unspecified, neither claiming that they were expressly stated. If, however, both claim that the terms were expressly stated but disagree, one saying that the hire was an undertaking to provide an animal and the other that it concerned a specified animal, they must each swear an oath and rescind the contract, provided that the hirer has not yet taken possession. This is because each is asserting a claim against the other.

If the hirer has taken possession of the animal and they then disagree, the hirer may say, “The animal I received is the very one I hired,” while its owner says, “I did not hire out that particular animal; I merely undertook to provide you with an animal.” Alternatively, the hirer may claim that the contract was an undertaking to provide an animal, while the owner says, “I hired out to you only the particular animal I handed over.” If the animal is no longer available, the statement of whichever party claims that the animal delivered was specifically designated is accepted upon his oath concerning it.

If, however, the animal remains available and has developed no defect, there is no point in requiring an oath from the party who claims that it was specifically designated, since his oath would achieve nothing in these circumstances. If it is the hirer who claims this, he can say to the owner, “Even assuming, as you say, that you undertook to provide an animal, you have already handed this animal over to me, and you have no right to take it away from me.” If it is the owner who claims that the animal was specifically designated, he can say to the hirer, “Even assuming, as you say, that I undertook to provide an animal, you have no right to require me to replace it unless it dies, develops a defect, or falls ill.” Success comes from Allah alone.