non-existent at the moment the contract is concluded, they are for the most part actually realized; and the Law only takes into consideration those benefits that are normally realized, or whose realization and non-realization are equally likely.
Section One
This section examines three matters: the nature of the price, the nature of the benefit for which that price is paid, and the description of that benefit.
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The Price
The consideration must be something that may lawfully be sold, as has already been explained in the Book of Sales. -
The Benefit
The benefit, likewise, must be of a type that the Law has not forbidden.
On these two points there are issues on which the jurists agree and issues on which they differ:
Matters unanimously declared invalid to lease
• Every benefit connected to an item whose very substance is unlawful.
• Every benefit the Sharīʿah itself has prohibited, such as the fees of professional mourners and female singers.
• Every benefit that is an individual obligation upon a person, such as the prayer and similar acts.
Matters unanimously declared valid to lease
They all agreed on the permissibility of leasing houses, riding beasts, people for permissible tasks, as well as garments and carpets.
Matters over which they differed
They disagreed concerning the lease of land, the lease of water, the hiring of a muʾadhdhin, the hiring of a Qurʾān teacher, and stud fees for breeding males.
Leasing land
On this question the jurists differed widely:
• A minority disallowed it altogether—among them Ṭāwūs and Abū Bakr ibn ʿAbd al-Raḥmān—whereas the majority permitted it.
Among those who permitted it, opinions diverged as to what may be taken in exchange:
• Some said the land may be rented only for dirhams and dinars; this view is attributed to Rabīʿah and Saʿīd ibn al-Musayyib.
• Others held that it may be rented for anything except food—whether that food is produced by the land or not—and anything that grows in it, whether food or otherwise. This is the position of Mālik and most of his companions.
• A third group allowed payment with anything other than food, and nothing else.
• A fourth group allowed every commodity, food or otherwise, provided the payment is not a share of the very produce of that land. This was the view of Sālim ibn ʿAbd Allāh and others among the early scholars, and it is the position of al-Shāfiʿī and the apparent opinion of Mālik in the Muwaṭṭaʾ.
• A fifth group permitted leasing the land for anything whatsoever, even for a portion of its own produce; this is the opinion of Aḥmad, al-Thawrī, al-Layth, Abū Yūsuf, Muḥammad (the two companions of Abū Ḥanīfah), Ibn Abī Laylā, al-Awzāʿī, and others.
The principal proof of those who forbid leasing land in every circumstance is the report transmitted by Mālik with his chain from Rāfiʿ ibn Khadīj:
‘The Messenger of Allah—peace and blessings be upon him—prohibited leasing cultivated fields.’
They argue that the wording is general. These scholars, however, ignored the specification transmitted by Mālik from the same narrator. Ḥanẓalah said:
‘I asked Rāfiʿ ibn Khadīj about leasing the land for gold and silver, and he replied, “There is no harm in it.”’
This was likewise reported from Rāfiʿ by way of Ibn ʿUmar, yet the general wording was nonetheless acted upon. Ibn ʿUmar used to lease out his land but eventually abandoned the practice. This accords with the opinion of those who maintain that a general statement is not narrowed by the subsequent explanation of its narrator.