One illustration of this is the view of Mālik: if rain-fed land is leased but drought prevents its cultivation or sowing, so that no crop sprouts because of the drought, the lease is rescinded. The same ruling applies when heavy rain renders the land unworkable until the planting season has passed and the tenant is unable to sow it. Any other calamities that befall the crop after it has been sown, however, do not reduce the rent in any way.
He further holds that where a lease is tied to a particular time—if that time is itself the point of the contract, such as hiring mounts specifically for the days of Ḥajj—and the lessor is absent during that period, the lease is dissolved. If the time is not the motive for the contract, the lease is not dissolved. All of this, in Mālik’s view, concerns leases of identified, concrete items.
As for a lease that rests on a generic obligation (fī ’l-dhimmah), it is not voided by the loss of the item placed at the lessee’s disposal to obtain the benefit, because the contract was not concluded over that particular item but over a described object owed in liability.
The detailed applications of this chapter are many; its governing principles are those we have just mentioned.
Section Two
This section examines liability (ḍamān). Jurists divide liability into two kinds: (1) liability arising from transgression, and (2) liability imposed to serve the public interest and safeguard property.
- Liability for transgression
Liability for transgression is unanimously incurred by the hirer; the debate concerns what kinds or degrees of transgression trigger it and to what extent. One case that illustrates the disagreement is a man who hires a mount for a set destination but rides it beyond that distance.
• Al-Shāfiʿī and Aḥmad rule that he must pay the agreed rent for the stipulated distance plus a rent equal to the additional distance he covered.
• Mālik gives the animal’s owner a choice: either take the rent for the excess distance or demand the full value of the animal.
• Abū Ḥanīfah holds that no rent is due for the excess distance, though all agree that if the animal perishes on that excess journey the hirer is liable for its value.
Al-Shāfiʿī’s reasoning is that the hirer has infringed upon the benefit itself and therefore owes the prevailing market rent, by analogy with every case of transgression against benefits.
Mālik treats the hirer as detaining the animal from the markets where it would ordinarily earn hire, thus likening him to a usurper—an analogy the author finds weak.
Abū Ḥanīfah’s opinion is, in the author’s assessment, far removed from sound Sharʿī principles; the view that best accords with those principles here is that of al-Shāfiʿī.
Mālik also holds that if an animal stumbles because of its owner’s negligence, the owner is liable for the goods it was carrying; the same applies if the ropes or tack are worn. Numerous further cases fall under this heading.
- Liability without transgression, imposed solely for public interest, concerns artisans. Consensus holds that a hired worker (ajīr) is not liable for the loss of the article he was employed to work on unless he transgresses—except for the food-carrier and the miller. Mālik renders these two liable for anything that perishes in their custody unless they can produce evidence that the loss occurred through no fault of their own.