but, by analogy, the rent should be the assessed rental value for the use to which he put it, whatever that value may be, and the landlord may lawfully retain it. This is because the contract was invalid and is rectified by payment of the assessed rental value once it can no longer be rescinded because the premises have been put to a lawful use.

If, however, he leased the premises to him without specifying their use, Ibn Habīb said: This is permissible, even if he knows that the tenant will sell wine there, and he is entitled to prevent him from doing so. Ibn al-Qāsim said in al-Mudawwana: The lease is invalid if he knows that the tenant will sell wine there. The ruling concerning this has already been explained. Both agreed that grapes may not be sold to someone whom the seller knows will press them into wine. The distinction, according to Ibn Habīb, is that the buyer takes the grapes out of the seller’s sight, so the seller cannot prevent him from pressing them, unlike the sale of wine in his house. If such a sale takes place, there is disagreement: one view is that the sale must be rescinded; another is that the grapes must be sold on the buyer’s behalf. Allah knows best.

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There is disagreement concerning the rental of houses in Mecca. Sufyān al-Thawrī held that they should not be rented out and saw no harm in their occupants withholding the rent. This is also the position of Abū Hanīfa, may Allah have mercy on him, and most of his companions, because they held that Mecca was conquered by force. Al-Shāfiʿī, may Allah Most High have mercy on him, held that it had been granted safe-conduct, and that safe-conduct has the same effect as a peace agreement. He therefore regarded its inhabitants as owners of their properties and permitted their sale and rental.

Mālik and his companions do not disagree that Mecca was conquered by force. One view is that he, peace be upon him, graciously left it in the possession of its inhabitants. It was therefore not divided, nor were its inhabitants taken captive, because of the great sanctity Allah had bestowed upon it. Another view is that it was retained for the Muslims. Their disagreement concerning the permissibility of renting out its houses arises on this basis.

The apparent position of Ibn al-Qāsim in al-Mudawwana is that this is permissible, whereas the apparent meaning of Mālik’s statement in Ibn al-Qāsim’s transmission in the Book of Hajj is that it is prohibited. Al-Dāwūdī related from him that he considered renting them out during the pilgrimage season reprehensible. Al-Lakhmī said: His statements differed concerning the rental and sale of houses in Mecca: on one occasion he prohibited this, while Abū Jaʿfar al-Abharī related from him that he considered their sale and rental reprehensible, but that if they were sold or rented out, the transaction would not be rescinded