Book of the ʿĀriyah (Loan for Use)
This chapter examines the loan for use, its essential elements, and its legal rulings.
The essential elements are five:
- the act of lending (iʿārah),
- the lender (muʿīr),
- the borrower (mustaʿīr),
- the article lent (muʿār),
- and the verbal formula (ṣīghah).
The act of lending
Lending an item without compensation is a virtuous deed and is recommended. Some of the early predecessors even spoke sternly about those who neglected it. ʿAbd Allāh ibn ʿAbbās and ʿAbd Allāh ibn Masʿūd, commenting on the Almighty’s words,
“And they withhold simple assistance” (Q 107:7),
said that “simple assistance” refers to household articles that people normally pass around among themselves—such as an axe, a bucket, a rope, a cooking pot, and the like.
The lender
Nothing is required of the lender except that he be the owner of the article, whether he owns its corpus or only its usufruct. The more apparent view is that a borrower may not, in turn, lend it out—that is, sub-lending is invalid.
The article lent
A loan for use may involve houses, land, livestock, and every identifiable object whose benefit may lawfully be used. For that reason it is impermissible to permit the use of female slaves for sexual enjoyment, and it is disliked to lend them for domestic service unless the borrower is a maḥram relative.
The verbal formula
Any wording that conveys permission suffices. According to al-Shāfiʿī and Abū Ḥanīfah it is a non-binding contract, meaning the lender may reclaim the article whenever he wishes. Mālik, in his well-known opinion, holds that the lender may not take it back until the intended benefit has been realized; if he stipulates a period, he is bound by whatever people regard as a normal term for such an item. The disagreement arises because the ʿāriyah shares features with both binding and non-binding contracts.
The legal rulings
There are many, the most famous being whether the article is guaranteed or merely held in trust.
• Some jurists say it is guaranteed even if proof is produced that it perished; this is the view of Ashhab, al-Shāfiʿī, and one of the two reports from Mālik.
• Others take the opposite view, maintaining that it is never guaranteed; this is the opinion of Abū Ḥanīfah.
• A third group says: liability is incurred for items that are prone to disappearance if no evidence of their destruction is available, but there is no liability for items that are not so exposed, nor when proof of destruction exists. This is the well-known position of Mālik, Ibn al-Qāsim, and the majority of his followers.
The root of the disagreement is the conflicting textual reports. In a rigorously authentic hadith the Prophet—peace and blessings be upon him—said to Ṣafwān ibn Umayyah:
“Rather, it is a loan for use that must be guaranteed and returned.”