Section

As for losses caused by calamities in leases, we say:

The imams do not dispute that if the use contracted for under a lease becomes unavailable before the lessee has had the opportunity to enjoy it, the rent ceases to be due. They have not disagreed over this as they have over the destruction of fruit that has been sold. In the latter case, they may say, “Possession was taken by granting access to it.” But benefits that have not yet come into existence have certainly not been taken into possession.

Accordingly, scholarly consensus has been reported that if a leased asset perishes before possession is taken of it, the lease is annulled. The same applies if it perishes immediately after possession, before there has been any opportunity to use it—apart from an anomalous dissent attributed to Abū Thawr. For the subject matter of the contract has perished before possession was taken of it; the case resembles the destruction of a sold item after possession, treating possession of the asset as possession of its benefits.

It may be said that this is the logical implication of the position of those who reject relief for losses caused by calamities. But they say:

“The subject matter of the contract here consists of benefits that have not yet come into existence and have not been taken into possession. Possession of them occurs only through enjoying them or having the opportunity to do so. Possession of the asset is treated as possession of its benefits only for the purposes of transferring ownership, establishing entitlement, and permitting disposal. Thus, if the asset perishes, it has perished before there has been any opportunity to enjoy its benefits, and the lease is annulled.”

Yet this commits them to the same conclusion regarding fruit, with respect to those parts of it that have not yet come into existence.