Among the issues over which the jurists differed is the case of a person who hires a mount, a house, or the like: may he sublet it for a higher rent than that for which he originally leased it? Mālik, al-Shāfiʿī, and a number of others permit this by analogy with sale, whereas Abū Ḥanīfah and his companions forbid it.

Their argument is that such a transaction constitutes “profit on property for which one bears no liability,” because responsibility for the underlying asset remains with its owner—that is, the lessor. They also liken it to selling what one has not yet taken possession of. Some scholars allow it if the lessee has carried out some improvement to the property; among those who see no objection under that condition is Sufyān al-Thawrī. The majority view is that leasing in this context resembles selling.

Another issue is that of re-renting the house to the very person from whom one first rented it. Mālik says this is permissible; Abū Ḥanīfah rules it impermissible, apparently considering that, when the two rentals differ, it amounts to devouring wealth unlawfully.

They also disagreed about a man who leases land to plant wheat but then wishes to plant barley—or any crop whose impact on the land is equal to or less than that of wheat. Mālik permits this; Dāwūd does not.

A further point of dispute concerns the cleaning of latrines in rented houses. The well-known position of Ibn al-Qāsim is that the obligation lies on the owners; another report from him—adopted as well by al-Shāfiʿī—places it on the tenant. Ibn al-Qāsim excepted inns through which one group of people enters while another leaves, saying that in such premises the cleaning is the landlord’s responsibility.

Malikī scholars also disagreed about minor structural collapse in a leased house: must the landlord repair it, or not, and should the rent be reduced accordingly? Ibn al-Qāsim says he is not obliged; other Malikīs say he is.

The subsidiary rulings in this chapter are many, and detailing them all is not our purpose in this book.

Second Overall Heading: an examination of the rulings that govern unforeseen events.

Chapter One: Rescission.

The jurists differed concerning the lease contract itself. The majority maintained that it is binding; others reported that it is revocable, comparing it to juʿālah (contingent remuneration) and partnership.

Those who held it binding then differed about what dissolves it. Jurists of the major centers—Mālik, al-Shāfiʿī, Sufyān al-Thawrī, Abū Thawr, and others—rule that it can be annulled only by the same causes that nullify other binding contracts: the appearance of a defect or the disappearance of the very thing from which the usufruct is to be drawn.

Abū Ḥanīfah and his school allow the lessee to rescind the lease for a supervening excuse—for example, if he rents a shop for trade and his merchandise is burned or stolen.

The majority’s evidence is the Almighty’s statement, “O you who believe, fulfil your contracts” (Q 5:1). A lease, they say, is a contract over benefits and thus resembles marriage; it is also a contract of exchange whose model is sale, and therefore it is not dissolved by such contingencies.