Chapter One
Hiring People (Ijāreh)
for Their Services
What we mean by hiring a person is when he makes his services available to be used in return for payment, regardless of the numerous and diverse fields of use, except in fields of earning that Islam has prohibited, which were mentioned previously. The renting takes place through a contract that includes the ījāb and qobūl (proposing and acceptance) of two contracting parties and has the necessary characteristic according to the Shari’ah; when the contract is done, each of the two contracting parties has to abide by what they have committed themselves to do for the other party, according to the contract.
(A) The contract and the contracting parties
First: The job contract
863. In a contract for hiring a person for his services, it is a must – as in all other contracts – that the two parties demonstrate acceptance of the relationship which they wish to make in a certain form and under certain conditions that lead to the designated aim/purpose and prevent dispute. The contract can be done in two ways:
a- Verbal contract, which is any wording that means that the worker is committed to do a job for another party in return of a certain amount of money and under certain conditions, and that the other party accepts it, without specifying a definitive wording for that contract. Related to this is the written contract as is commonly followed in our time. The dumb needs only to show his intentions using signs, or using writing when he can.
b- Mo‘ātāt, which is handling or pursuing a job upon a request, such as when the employer hands over his land to the farmer to cultivate it, or his clothes to the tailor to make it, and the wageworker/employee/hired person (ajir) is handed over the land or the clothes with the intention of carrying out the work.
It is known that most work agreements are done by verbal contracting through dialogue between the two parties, and that hiring is seldom done through pure Mo‘ātāt.
864. If a person asks another to do work for him saying: ‘Sew these clothes for me’ for example, and the person so asked carries out the work, this is not a hiring contract, but would the person doing the asking have the responsibility to pay the worker a reasonable wage for the work? The answer is as follows:
a- If the worker’s intention in this work was voluntary and free of charge, in this case no payment is due to him for the work.
b- That the worker’s intention of this work was payment, but the wish or intention of the person asking was for voluntary work, depending on the indication that was understood from the nature of the required work, the nature of the person asking or the social relationship between them - such as if he asked him to show him how to reach someone’s house, or that the person asked is from social high ranks that do not take payment, or that the husband asks his wife to copy an article which he wrote - in such cases it is not obligatory on the person asking to pay a fee if the worker claims it.
c- If the worker’s intention is to be paid but the person asking expects voluntary work without any indication of this, in this case the fee due to the worker is one that is common for such work, which is called ‘ojrat al-Mithl’ (the fee for similar work).
865. It is conditional for the validity of the person’s contract that the contracting parties are qualified regarding reaching the Islamic legal age (bolūgh), sanity, reasonable conduct (roshd) and free will, in addition to the permission of the husband if the contract involves renting the wife’s services for herself in contradiction to the husband’s sexual rights, but if it is not in contradiction with his right, she is not obliged to seek his permission, even if the work commits her to go outside his house; that said, the couple should agree between them on this on the basis of love and mercy.
866. An interdicted person (one who is pronounced legally incompetent) because of bankruptcy is allowed to lease his own services; he is also allowed to act as a proxy for renting others; but he is not allowed to rent others to work for him because he is prevented from disposing of his money.
867. It is obligatory on the guardian (wali) of a child who has not reached the Islamic legal age, if that child works, to observe the following:
a- That hiring him does not contradict a more important matter, such as his education that is essential for children like him, except if the child is poor and has no one taking care of his affairs and meeting his needs unless he works himself and produces for himself.
b- That the work he will do does not lead to physical or moral harm, such as if the work is exhausting or includes humiliation and oppressive control.
c- That there is an interest for him in the kind of work he will be doing, so it is not sufficient that there is no evil is in it.
Second: Work conditions
868. There are conditions in the work that is contracted between the wageworker/employee/hired person and the employer:
1- Specifying the type and specifications of the work, in quantity and quality, in a way that avoids any costly misunderstanding. The time/duration (of the work) is according to the employer's wish; it is up to him if he does not want to specify it, unless time is important and the aims differ according to it in a way that not specifying it leads to misunderstanding, in which case the time must be specified. That said, some kinds of work have common specifications that are known when contracting for them, so it is acceptable to keep to these and, if it is clear and known to both parties, it would be as if they actually did mention it.
2- The work must be allowed in itself, even if the aim is forbidden, so pressing grapes for someone who wants to make them into alcohol is allowed, but not at a stage in the processes that take place inside the alcohol (ie drinks) factory, but as an independent external work, otherwise it becomes forbidden. Also forbidden is any allowed work that depends on forbidden work, such as hiring a woman in her menses to clean the mosque, for example.
3- The contracted person must be capable of doing the work, so it is not valid to hire someone for services that he cannot do, either in itself, or because of a shortage of time to accomplish it according to its conditions, or because of the lack of necessary tools, or because he does not know the work he is hired to do when it is conditional to start before he knows this.
Third: Wages/payment conditions
869. The payment/wages must have value and it may be an asset (such as money or goods or work offered by the employer to the employee/hired person, so that if A cultivates the land of B, B may sew the clothes of A), or a right (such as if the employer hands over the right of authority/jurisdiction or the right of interdiction).
870. If the payment/wages is an asset, it must be known by seeing or by describing what distinguishes it from others, it must be owned by the employer, have a value that is commonly regarded as worthwhile, and be possible to hand over when necessary. If the payment/wages is work, the work must be allowable, must not depend on a forbidden work or thing, such as if it depends on using a stolen tool, or entering the mosque and remaining in it while having janabah, or the like.
If it is a right, such as right of custody or kholow (payment to make a place vacant before renting it) or the like, it must be known and specified in a way that removes misunderstanding and it must be owned by the person handing it over. It must be noted that guardianship on minors is not one of the rights, because it is a ruling conferred upon the person himself and it is not possible to transfer it to others, whether for something else or for free.
(B) Commitment to the contract and causes of its invalidation (feskh)
If the contract becomes complete with all conditions, it becomes binding on both parties, so the employee/hired person must carry out what he has committed himself to and the employer/hirer must pay the payment/wages/rent to the employee/hired person that he has committed himself to, and if one of them wishes to revoke the contract or withdraw from some of the contract’s content or to cancel it altogether, or to change it by adding or omitting some of its clauses, he has no right to do so unless the other party accepts out of his free will, unless he has an invalidation option (see below), or something happens that grants him an invalidation option, such as death or others, or if the invalidation takes place without an option because the the employment was invalidated for unexpected reasons, as will be explained later.
Based on this, the most important thing that grants the right of invalidation or revocation of the contract for one or both of the contracting parties is the option to do so.
The terminology of this option names the reason that enables one of the parties to invalidate the hiring/employment contract – or other contracts – when it takes place, according to the following:
1- The defect/fault (‘ayb) option
871. If the employer finds a fault or defect in the worker whom he hired and the fault or defect existed before the contract, if the employer knew it and nonetheless hired him, he has no right over him, but if he was unaware of it or did not know it completely, then if it is minor that does not affect the work in hand, there is no option for him, but if the defect is major, and if it leads to shortcomings in his work and a reduction in some of its benefit, or if it is not like that but is something for which people are normally rejected for employment because of it, such as if he is disfigured and he is hired as a waiter, in these cases the invalidation option is available to the employer either to accept the status quo as it is if the defect does not lead to loss of some of the employment's potential benefit, or he is allowed to reduce the agreed on wages/payment by the value of the amount lost in the benefit. The same ruling applies if the defect/fault takes place after the contract is agreed.
872. If the employee/hired person finds a defect or fault in the asset involved, or its benefit, or deficiency in the payment which the employer has agreed to pay him in advance before he starts the work, there are two situations:
1- If the asset paid was personal and specified when the contract was being made, and the employee/hired person then finds it defective, he has the choice of revoking the contract or accepting it but with taking a compensation of the loss.
2- If the asset paid is not specified by a certain person, it is called ‘ayn kolliyyeh, and in this case the employee has no right to invalidate the agreement, but he has the right to claim a non-defective replacement, and if this is not possible, then he has the choice of invalidation or accepting the defective asset but with the right of compensation.
This is if the payment is made in advance. However, if it is paid after completing the work, he has the right – only – to claim what is lost of the value due to the defect after the option of invalidation became impossible, the work having been completed.
873. What is commonly accepted as an immediate response is to be observed if the defect option is exercised, so it is not acceptable to delay using it and to delay the invalidation – if he so wants – for longer than is commonly acceptable according to the case.
2- The unfairness (ghobn) option
874. The unfairness option is for the employer if he pays the employee/hired person more than the usual amount, and is for the employee/hired person if he is paid less than the usual amount, to a degree that is not commonly tolerated in its amount and in circumstances in which people regard that the person on whom the loss has been inflicted has been treated unfairly (meghbūn). But to apply this option, the person treated unfairly must be unaware of the situation, and must know of and want the usual payment, otherwise this option will not be applicable.
875. If the person treated unfairly comes to know the unfairness, the rights that are normal for such transactions are applicable to him; so if it is common that he can claim the difference and if he is not paid that then he has a right to the unfairness option; in this case he cannot – according to this commonly accepted norm – invalidate the contract unless the other party refuses to pay the difference; if such a norm does not exist, the person treated unfairly only has the right to revoke the contract or to accept the status quo without claiming the difference.
876. The commonly accepted concept of immediate response is to be observed in the unfairness option, i.e. not to delay the revocation of the contract for longer than is normally acceptable in similar situations, after knowledge of the unfairtreatmentand that he has the option is established. That said, there is no problem if a delay takes place because of an acceptable excuse, such as waiting for the other party or difficulty in reaching him or someone whom he wants to consult or the like.
3- The invalidation condition (ash-Shart@) option
877. The condition option is confirmed when both parties in the contract, or one of them, makes conditional for the other, himself or a third party, the right of invalidation of the hiring/employment contract during a certain period, either attached to the contract or separate from it; it is sufficient in specifying the period to do so in general terms, such as ‘as long as one is alive’, in contrast to no specification or vagueness.
4- The condition-failure (tekhellof ash-Shart@) option
878. This is confirmed when one or both of the contracting parties make conditional one condition that is reasonable in the Shari’ah as part of the contract; and when the person upon whom the condition is made fails to meet the condition’s obligation, the other party (who stipulated the condition) is allowed to invalidate the contract and cancel the deal, or to accept it as it is without compensation for what he has lost as a result of not meeting the condition’s obligation. However, he is allowed before that – if he so wishes – to turn to the Islamic authority (al-H@ākim ash-Shar‘ī) to force the other party to meet the obligation of the condition.
879. There is no distinction in the conditions, over which the option is exercised due to the failure to meet their obligations, between those mentioned and clear in the contract and those that are implicit conditions that are part of the commonly carried out transactions and which are seen as implied in them, and so are not mentioned because of their common nature and the presence in the minds of the contracting parties who know them.
5- The split deal (teba‘‘od@@ as@-S@afqeh) option
880. In contracts, each party must hand over to the other party the whole of what is agreed on, so if the asset owner, for example, hands over only half of a rented house, or the farmer cultivates only half of the land in the time when the whole asset or work must be handed over completely, in this case the employer has two choices: either to invalidate the contract or accept the status quo, and when he chooses one of the two options, he has to pay the employee/hired person half the agreed on wage/payment, as in the given example.
6- The failure to hand over (te‘aththor at-Teslīm) option
881. Failure to hand over means that the employee/hired person or the employer does not hand over what each of them has committed himself to hand over to the other party, intentionally or for unexpected uncontrollable reasons that prevented this, in which case the harmed party has the option to revoke the contract.
7- Th partnership (shirkeh) option
882. This option becomes available if it is discovered after the contract is agreed that the rented or given-as-payment asset is to be owned in partnership between the new beneficiary and another party; this is because the partnership is regarded as an obstacle to independent disposal of the asset unless after obtaining the partner’s permission; in this case the option to revoke the contract will be open for the harmed party or the option to accept the status quo while claiming the difference between the value of the asset in partnership and its value if owned by one person only.
8- The cheating (tedlīs) option
883. Tedlīs is a type of cheating, which occurs when one of the contracting parties conceals some shortcomings or faults in what the two parties have agreed upon while presenting it as complete and faultless. The harmed party has the right to invalidate the contract or to accept it with a claim for compensation – the compensation equals the difference in value between that which has the desired characteristic and that which lacks it.
9- The bankruptcy (teflīs) option
884. Teflīs/ifās in hiring/employment contracts takes place when the party hiring a person's services fails to pay the fee/payment due; in this case the hired party has the choice of revoking the contract and claiming the asset or to continue with the contract and joining other creditors to claim his money. The same applies for employment/hiring of people, where the worker/employee/hired person has the choice of revoking the contract for the period that remains after the employer fails to pay the wages in time and the worker/employee/hired person joins the other debt parties; however, if he has already completed the work, in this case he has no choice but to join forces with the rest of creditors.
(C) Rulings regarding carrying out and handing over the work
885. It is obligatory on the worker to abide by the clauses and implications (implicitly included clauses) of the contract that state how the work should be done, its time period and complexities; if he violates them so that the contract becomes void of some of its fundamental points, the leasing/renting/employing/hiring contract becomes invalidated/revoked immediately, but if he violates them without the contract losing some of its fundamental points, in this case the employer has the right to invalidate the contract according to the condition failure option that was mentioned previously. This is a general rule that applies to all work in which the condition is a fundamental basis on which the agreement was made and from which the work proceeded.
886. If a volunteer completed the work of the employee/hired person, whether by the request of the latter or not, the payment will be due to the employee/hired person even though someone else carried out the work if that other person intended the work as voluntary for the employee/hired person and to relieve him from his obligation; nothing will be due to the latter, since his voluntary act effectively brought the employment/hiring agreement to a close.
887. If the employee/worker/hired person leaves the service of the employer and starts working for someone else during the period of needing him, here there several situations may arise:
1- If he starts to work for himself, in this case the employer has the choice of acceptance and allowing him to keep working for himself, while claiming compensation for the loss of benefit in ratio to the agreed payment, or to invalidate the contract and cancel the deal, and to claim back the whole of the agreed payment and pay the worker a fee based on similar work (ojrat al-Mithl) for what he did do, unless if he had included a condition that no payment is to be paid until the whole work has been completed, in which case nothing is due to the worker.
2- If he goes to work for another person for free, the ruling in this case is the same as in (1) above.
3- If he goes to work for another person for a fee/payment, in this case the employer has the choice of two resolutions:
a- To accept the status quo, with a payment agreed on in the second contract payable to the first employer.
b- To reject the second contract, in which case he has the choice of either invalidating the first contract and taking (back) the payment agreed with the worker and paying him a fee based on similar work, or to continue employing/hiring him but with the worker’s commitment to compensate the loss of benefit during the period of the second contract which equals the difference with the agreed payment.
888. If a person is hired for a complete recital (khetmeh) of the Holy Qur’an, he must carry out this according to the norm, which is the correct recital in all its words and short vowels, observing the order of the chapters according to what is found in the Qur’an.
889. If he is hired to pray on behalf of the dead, he must offer the prayer according to the contract; so if requested in it is the prayer that is correct in the Shari’ah, the employer is allowed to ignore its recommended part, with no harm done in failing -out of lack of awareness - in some of its obligatory parts, without which the prayer does not become void; however, if what is requested is prayer with all its parts, obligatory and recommended, and the person praying ignored some of them, in this case the prayer will continue to be valid, but nothing will be due to him except the payment equal to what he has performed, unless it was agreed that its completeness was a fundamental condition to deserve the payment, in which case (because he ignored some of it) no payment will be due to him.
(D) Rulings regarding damage (telef) and rendering defective (ifsād)
By damage (telef) we mean the asset becomes impossible to benefit from as a result of things like burning, drowning, burglary etc; making defective (ifsād) means something happens to the asset of the employer when at the disposal of the employee/hired person that leads to a defect, shortcoming or harm, such as a tailor wants to sew a dress but he commits a mistake in his planning making the dress short (er than required) and the like.
890. If damage takes place to the employer’s asset when it is at the disposal of the employee/hired person who is working on it for the former but for a reason other than the worker’s actions, without negligence on his part or improper conduct, in this case no compensation is due from the worker; for example, if a sick person dies during treatment for reasons unrelated to the treatment, or a car gets burned when outside the mechanic's garage and not through his failure to protect it.
891. The worker pays compensation – if he is negligent or has little experience in his work – on every asset belonging to the employer that is damaged, or becomes defective or degraded when at his disposal for that work. However, if he is alert, experienced, doing his utmost not to make an error and works according to the common norms and foundations of his profession, in this case he does not pay compensation for what it becomes damaged in his care.
892. The employer – as long as he was not the cause – does not pay for what happens to the worker in terms of illness, harm or death when doing his work, unless the worker has stipulated a condition of compensation in some form, or if it falls within modern work laws, explicitly or implicitly, in which case he must pay compensation according to the conditions.
893. In every situation in which the worker does not (normally) become obliged to pay compensation for what gets damaged when at his disposal, the employer has the right to make compensation conditional; also, it is acceptable to make not paying compensation conditional in situations when it is (common) to pay compensation; in each of these cases, if the other party accepts, he becomes committed to pay or not pay according to the condition.