Chapter Two
Rent/Lease (Ijāreh) of Assets
Contracts for renting/leasing assets are similar to contracts for people’s employment or hiring regarding the (wording) form of the contract and conditions of the contracting parties, (but) with changes in the wording to make them suitable for renting/leasing assets. They are also generally similar in the specifications and rulings of the contract regarding commitment and invalidation/revocation. Exceptions to this will be discussed in the following.
(A) Conditions of the rented/leased asset
894. The asset is: every thing that has benefit for which it (the asset) is sought. The validity of its rental/lease is conditional to having the following:
1- The asset must have value, i.e. it must have a benefit that is appreciated and sought after, even if for a small number of people.
2- The asset must be suitable for benefiting from by its survival, so if benefiting from it is through destroying it, such as food and drink, its rental/lease is not valid; rather, it has no meaning.
3- Its benefits must be allowable (in the Sharī‘ah), so if its benefits are limited to forbidden things, rental/lease is not valid; also not valid is renting/leasing for the sake of forbidden benefit when (the asset’s benefits are) not limited to it.
4- The asset must be suitable to fulfil the sought after benefit, so it is not valid to rent/lease land for cultivation if its soil is not suitable for farming, and the like.
5- Both the asset and the benefit must be known and specified in a way that distinguishes the asset from other assets and the type of benefit from other types of benefits, so that the renting person can be introduced to the asset’s features by viewing it or by listing them, and he can also be introduced to the details of benefiting in a way that does not cause misunderstanding that leads to dispute and loss of benefit.
6- The owner must have the capability, even if only probable, to hand over the rented asset; sufficient in this is the ability of the renting person to get it handed over to him in the case of the owner’s failure to hand it over. Handing over can be made a condition for the rental/lease, such as saying: ‘I will rent this asset from you if you can hand it over,' making it valid if the asset is handed over, otherwise not.
This is regarding the conditions of rented assets; the conditions of the rental payment, however, are not different to what we have mentioned in the employment/hiring of people.
(B) Commitment to the contract and causes of its invalidation (faskh)
895. If the rent/lease contract is completed with its conditions, the two parties become obliged to abide by it and neither one of them will have the right to invalidate it or retreat from it except if the right of invalidation becomes confirmed through one of the choices explained under the employment/hiring of people.
896. The rent/lease is not invalidated by selling the rented/leased asset before the end of the rent/lease duration, (but) the asset is transferred to the buyer lacking its benefit because of the renting person/lessee’s ownership of the benefit through the rent/lease contract.
897. If the rented/leased asset is sold and transferred to the buyer without its benefit and the renting person/lessee revokes the contract for any reason, in this case the benefit, during the rest of the contract period, returns to the seller, not the buyer; this is because when he sold the asset without its benefit to the buyer, the benefit remained in his ownership, even though the buyer was himself the renting person/lessee.
898. The rental contract does not become invalidated by the owner’s death and the inheritors must meet their obligations towards the renting person and enable him to benefit from the rented asset despite its transfer to them by inheritance. Also the contract does not become invalidated by the death of the renting person if the owner had not made it conditional that only he (the renting person) was allowed the right to benefit from it and his wish was not to separate renting the house from allowing the specified renting person to benefit from it [.
899. If the renting contract becomes void or if the invalidation takes place before any benefit is received, there is no problem in this; but if this takes place after the elapse of some time after the beginning of the contract, three situations arise:
1- If the contract is ruled invalid, meaning that its invalid status is discovered (shortly after) the outset, in this case the owner must return the agreed rental/lease to the renting/leasing person and to take as rent the value of a similar rental for the duration in which he benefited from the asset.
2- If the invalidation is ruled during the contract, which is called ‘invalidation when something that renders it void takes place after being valid’, in this case the owner has the right of rent that equals the amount which the renting person had benefited from it in ratio to the agreed rent, not the rent of a similar property (ojrat al-Mithl).
3- If the contract remains valid, but something happens that gives the right of invalidation to one of them, or if they agree on /invalidation, in this case the ruling is as in the second situation above.
(C) Handing over (taslim) rulings
900. If the contract is complete with its conditions, the renting person will own the benefit from the owner and the owner will own the rent from the renting person; the consequence of this is that each of them must hand over what he has to the other, which means that the renting person must pay the rent immediately and in advance, unless a condition contrary to this is made by the owner.
Handing over the benefit takes place by handing over the asset/property, which differs according to the asset in question, so a house is handed over by handing over its keys while a piece of land is handed over by allowing the renting person to have control over it – this kind of handing over is called ‘takhliyeh’ (vacating/emptying). However, handing over a ‘right’ takes place by handing over the thing that is related to the right, so handing over custody is done by handing over the children and so on.
901. If the owner submits the rented asset to the renting person and prepares all the necessary things for handing it over but the latter voluntarily abstains from taking the asset, or he takes it but does not voluntarily take the sought-after benefit, or if the renting person has a private excuse for not taking the asset, such as illness, forgetfulness or the like, and the rent was restricted to a certain time or a time that is commonly accepted to be needed for getting the benefit, in all these cases the renting contract is valid and the renting person has to pay rent to the owner. However, if the rental contract has no time restriction, or if the benefit was not one that should be benefited from – as is commonly acceptable – within a certain time period, the renting person will still have the right to keep the owner waiting until he obtains the benefit after the disappearance of the obstacle.
But if the obstacle to taking it was not private, such as bad weather or disturbances in the security situation, in this case the renting contract becomes void and the owner is not owed anything by the renting person.
902. If the obstacle to obtaining the benefit was losing the asset by such things as misappropriation (e.g. theft), then if the misappropriation had taken place before the renting person had handed over the asset and the misappropriation was directed towards the renting person out of the misappropriator's wish to harm him, in this case the renting contract is valid and all its rulings apply. But if the misappropriation was not to harm the renting person in particular, the renting person will have the right to revoke the contract and to claim the rent back, or to stay with the contract and go back to the misappropriator to claim payment equal the lost benefit. However, if the misappropriation took place after paying the rent, the contract is valid and the renting person should turn to the misappropriator to claim his rights.
903. If all the asset’s benefits are damaged, two situations arise:
First: If the damage was due to a natural phenomenon such as lightning or the like, then if the damage took place before the hand-over or immediately after it, but before benefiting from it, the rental contract becomes void; but if this takes place after benefiting for some time, the contract will become void starting from when the damage takes place and the renting person pays the owner rent in the ratio of the benefiting time to the agreed rent.
Second: If the damage was due to an intentional act committed by a sane person, here if the damaged party is the renting person, the rental becomes void as in the first situation and compensation for the asset is confirmed if the matter was one of transgression and negligence. And if the damaged party was the owner, the rental will stay valid absolutely, but the renting person will have the right of choosing to go ahead with the contract and to claim a replacement for the damaged asset or to invalidate the contract and claim back the agreed rent in the ratio of his benefit from the asset during that time. However, if the damaged party was other than the two contracting parties, then if the damage took place before handing over the asset, the renting person will also have the right to choose to revoke the contract and claim back the rent or to go ahead with claiming a replacement to the damaged asset; but if the damage took place after the hand-over, the contract will not be invalidated and the responsibility will be on the damaging party for his transgression, so the renting person turns to him to pay compensation for the lost benefit while the owner turns to him to claim a replacement for the asset or its value without the benefit, according to the compensation rulings explained.
904. If the damage to the rented asset did not completely prevent benefiting from it by ways other than what was sought in the beginning, then if the owner made it conditional to use the asset for the particular benefit that was (later) lost by the damage, the contract will not become void, but the renting person has the right to choose to go ahead with the contract and benefit from the asset and to claim the difference in rent if it is less, or to invalidate the contract and claim back what he paid of the agreed rent if this is due to him.
905. If the asset damage was partial, the renting person will have the right to exercise the option of a split deal, so he may choose to go ahead with the contract with compensation for the loss in benefit in its ratio to the rent, or to invalidate the contract and pay the owner the amount of the rent in ratio to the amount that he benefited from the asset. This is if the party who did the damage was not the renting person; if that was the case, he would not have that option, but the rent would remain due in full in addition to compensation to the owner for the damaged part, estimated according to the benefit lost.
906. The rented/leased asset is entrusted to the renting person, but if it is damaged he is not obliged to pay compensation if he did not transgress nor is guilty of neglect, meaning that he did not violate the permissible extent of benefiting from the asset nor subject it to whatever might cause damage; otherwise compensation will be due (to the owner). Also, compensation will be due if the owner made compensation conditional, even if the renting person did not transgress or is guilty of neglect.