As for the kinds of lease, the jurists agree that they fall into two categories:
- hiring the usufruct of a tangible, perceptible object, and
- hiring a usufruct that is merely an obligation in one’s liability (dhimmah), by analogy with a sale.
When the usufruct is in the dhimmah, a detailed description is indispensable; when it is attached to a specific object, either actual inspection or an adequate description suffices, exactly as in sales.
Among the requirements of a valid description is to state both the genus and the species. This applies to the thing from which the benefit will be taken and to the thing by which that benefit will be realized. Thus, if one hires a mount, one must describe, for example, both the animal to be ridden and the load by which the riding-benefit is obtained.
Mālik holds that the rider himself need not be described, whereas al-Shāfiʿī requires such a description. Ibn al-Qāsim maintains that when a shepherd is hired for specifically identified sheep, the contract is only valid if it includes a stipulation for replacement should any animal perish; others deem the entire flock binding without any such condition.
For a lease that rests on liability, Mālik stipulates that payment be made up front so as to avoid exchanging one debt for another. Conversely, in leasing land whose irrigation is uncertain, he requires that payment not be stipulated until the first watering has taken place.
They also disagreed about whether an option of rescission (khiyār) belongs among the types of lease. Mālik permits it in both forms of lease—whether the usufruct is guaranteed as a liability or tied to a specific object—whereas al-Shāfiʿī does not allow it at all.
These, then, are the well-known issues that arise in this first section of the book, the section that examines the scope of the contract, its attributes and its varieties—matters that play the role of pillars of the contract. By them the contract is judged valid when the Sharʿī conditions are met, and invalid when they are not. What remains is the second part, which deals with the legal rulings that flow from this contract.
Part Two of this book: An Examination of the Legal Rulings on Lease Contracts.
The rulings concerning leases are many, yet in broad terms they are confined to two overall headings:
- the obligations and liabilities intrinsic to the contract when no unforeseen event intervenes, and
- the rulings that govern contingencies. The latter, in practice, are chiefly concerned with: determining when compensation becomes obligatory and when it does not; determining when dissolution of the contract is required and when it is not; and determining how disputes are to be adjudicated.
Section One: Among the celebrated questions in this chapter is the point at which the lessee must pay the rent when the contract is open-ended and does not stipulate immediate receipt of the price. According to Mālik and Abū Ḥanīfah, payment becomes due piecemeal, in proportion to the usufruct actually received, unless the parties stipulate otherwise or some factor necessitates prepayment, such as when the consideration is a specific item or when the rent itself is a liability in the dhimmah. Al-Shāfiʿī, by contrast, holds that the price falls due the moment the contract is concluded. Thus Mālik maintains that payment is earned only to the extent that benefit is delivered, whereas al-Shāfiʿī regards any deferment as an instance of exchanging one debt for another.