Hiring Services in Return For Part of The Service Rendered

A Refereed Study
Hiring Services in Return for Part

of the Service Rendered: Forms,
Ruling and Adaptability
Dr. 'Abdur-Rahmaan ibn 'Uthmaan al-Jul'ood1
1 Dr. 'Abdur-Rahmaan al-Jul'ood is assistant professor in the Department of Islamic

Culture, College of Education, King Saud University, Riyadh.
Hiring Services in Return for Part of the Service Rendered
Introduction
All praise belongs to Allah who has legislated the simplest of
religions and the easiest of rulings for us and, and may Allah's peace
and blessings be upon him who has clearly showed us the right path
and all the ways that lead to it, upon his family and companions, as well
as upon all those who remain steadfast on such a path.
Indeed, Almighty Allah has made all people on the face of the earth
in need of one another's help and services, as He says, "Do they
distribute the mercy of your Lord? It is We who have apportioned
among them their livelihood in the life of this world and have raised
some of them above others in degrees [of rank] that they may make use
of one another for service. But the mercy of your Lord is better than
whatever they accumulate."2
Therefore, each one of us is constantly serving others and being
served; and were people equal in all worldly matters so much so that
none of them needed one another's services, their worldly interests
would certainly be suspended. It is for this reason that the Islamic Law
(the Sharee'ah) came to approve many forms of contracts, with the
conclusion of which all the contracting parties will realise their sought-
after goals in a legitimate manner. One such contract which is bound to
ease the way for people to realise their interests and objectives is the
ijaarah contract3, with all its types and forms. Indeed, concluding an
ijaarah contract in return for part of the work done is one of the issues
that have aroused controversy among scholars and one of the forms of
contracts that have been widely utilised at the present time. Because
2 Surat az-Zukhruf, 43:32.

3 In Islamic mercantile law, the term ijaarah is used for two different situations. In the
first place, it means 'to employ the services of a person on wages given to him as a
consideration for his hired services." This type of ijaarah includes every transaction
where the services of a person are hired by someone else. He may be a doctor, a
lawyer, a teacher, a labourer or any other person who can render some valuable
services. The second type of ijaarah relates to the usufructs of assets and properties,
and not to the services of human beings. Ijaarah in this sense means 'to transfer the
usufruct of a particular property to another person in exchange for a rent claimed
from him.' In this case, the term 'ijaarah' is analogous to the English term 'leasing'. In
the context of the present paper, the type of ijaarah tackled refers to hiring human
services in return for part of the work done. [Translator's Note]
152 Al-Adl (37)

Dr. 'Abdur-Rahmaan ibn 'Uthmaan al-Jul'ood
such issue has never been thoroughly tackled in separate paper, to the
best of my knowledge, I have thought it most appropriate to contribute
a separate paper on this particular issue, clarify its forms and the Islamic
ruling regarding it with a view to making this issue much clearer and
discussing it at greater length. Perhaps this expansion on the subject will
prompt other researchers to broach some aspects of this issue.
Research Procedures
I followed the following procedures in conducting the present
research:
1. I gathered all the necessary information about this subject, to the
best of my ability, and I stated the preponderant views after citing the
various proofs brought forward by proponents of different opinions. I
have also mentioned the objections raised regarding the various views.
2. If the Prophetic tradition (hadeeth) used as evidence in the paper
is in Saheeh al-Bukhaaree or Saheeh Muslim, I would normally mention the
version in one or both sources; otherwise, I would trace its chain of
narrators in any of the most important sources of the Sunnah, citing
these sources in the order of the demise of their compliers and stating
the experts' statements on these traditions in terms of authenticity or
weakness.
3. I documented the jurists' statements and opinions by referring to
the reliable juristic books, bearing in mind the chronological order of the
emergence of the various schools of jurisprudence and citing these
sources by mentioning those authors who passed away first.
4. For the sake of brevity, I did not write a brief biography of those
eminent figures and leading authorities, for the main objective of the
paper is to come up with the ruling regarding the issue of ijaarah in
return for part of the work done.
5. I did not expand on the introductory notes of the paper, such as
the definition of ijaarah, its legality in Islam and its conditions. Rather, I
briefly mentioned whatever would serve the purpose without much
elaboration.
6. I focussed on the forms of ijaarah in return for part of the work
done and mentioned the various opinions in this regard as well as the
adaptability of this type of contract, for the paper was written to tackle
this issue in the first place.
Al-Adl (37) 153

Plan of Study
The present study comprises an introduction, seven main sections
and a conclusion. The introduction introduces the subject, procedures
and plan of the research conducted. The first section provides the
linguistic and technical definitions of the term ijaarah. The second section
defines the concept of ijaarah in return for part of the work done. The
third section cites the Islamic ruling regarding ijaarah and states
evidence as to its legality in Islam. The fourth section discusses the
conditions of concluding a valid ijaarah contract. The fifth section
presents some forms of ijaarah in return for part of the work done. The
sixth section presents jurists' opinions regarding this form of ijaarah. The
seventh section discusses the issue of adaptability of the ijaarah contract
in return for part of the work done by stating the category of agreement
within which it falls. The conclusion delineates the most important
findings of the research.
I pray to Almighty Allah to make the present paper beneficial to
everyone, to forgive sins and forgo mistakes and to grant us sincerity in
both words and deeds. We also pray to Him to send his peace and
blessings upon our Prophet Muhammad as well as upon his family and
companions.
154 Al-Adl (37)

Section One: Linguistic and Technical

Definitions of the Term 'Ijaarah'
1. Linguistic Definition
The Arabic word 'ijaarah' is derived from the verb 'ajara' (to reward)
and the noun 'ajr', which is the money received as payment for the work
done. The word 'ajr' also means reward. The verb 'aajara' means to
reward, as in "aajarak-Allaahu" (may Allah reward you). The plural form
of the word 'ajr' is 'ujoor'. The derivative 'ujrah' means rent, that is, the
money that someone pays regularly to use a room, house etc. that
belongs to someone else, and its plural form is 'ujar'. The other
derivative 'ajeer' is the employee, wage-earner, labourer; and its plural
form is 'ujaraa''.4
2. Technical Definition
As a general rule, jurists (may Allah have mercy upon them) tend to
define juristic terms in their books and they always include certain
restrictions which some other jurists may deem unnecessary and thus
not worth mentioning; sometimes they may not even agree with them at
all regarding these restrictions. One such term which is a case in point is
the word 'ijaarah'; for it has been defined in approximately similar ways
which I deem unnecessary to mention and study with a view to selecting
a comprehensive definition of the term; rather I will confine myself to a
definition which Muslim jurists have agreed to add certain restrictions,
either in the definition itself or in the course of discussing the conditions
of ijaarah5. Thus ijaarah can be defined as a contract for a using an
intended and lawful usufruct6 for a fixed period of time in return for a
fixed wage.
4 Mu'jam Maqaayees al-Lughah, 1/62; Lisaan al-'Arab, 3/65; Al-Qaamoos al-Muheet, 1/362;
and Al-Misbaah al-Muneer, p. 2.
5 Al-Hidaayah, 3/231; Al-Ikhtiyyaar, 2/50; Bulghat as-Saalik, 2/263; Haashiyat ad-Dasooqee,
4/2; Mughnee al-Muhtaaj, 2/449; Kashf al-Qinaa', 3/546; and Sharh Muntahaa al-Iraadaat,
3/350.
6 The usufruct, or manfa'ah, differs from one contract to the other. In the lease contract
the usufruct of the leased, in this case the house, is residing therein, whereas in
employment the usufruct of the employee is the service rendered by him. [Translator's
Note]
Al-Adl (37) 155

Section Two: Definition of Ijaarah in Return for

Part of the Work Done
Muslim scholars have not specifically dealt with the definition
of ijaarah in return for part of the work done but have stated some
examples during the course of discussing some of the basic
elements of ijaarah, namely the ajr (pay, wage, remuneration) and
then they have embarked upon discussing the conditions relating
to this basic element as an integral part of the contract. However,
this minor detail can be defined by combining the general
definition of ijaarah and the examples which jurists generally
mention in connection with ijaarah in return for part of the work
done. Thus, the term can be defined as a contract for using a
certain intended and lawful usufruct in return for a known and
prevailing remuneration in exchange for the services which the
employee (ajeer) renders.
Explanation of the Definition
1. 'A contract for using a certain usufruct, or benefit': This
condition excludes two things:
a. A contract that is concluded regarding a corporeal property
('ayn), in which case it is not considered an ijaarah contract but rather a
sale contract; for the ijaarah contract is aimed at a certain usufruct to be
realised by the ajeer (employer) for which he deserves remuneration.
b. A contract which is bound to cause harm , for harm is the
opposite of benefit, and if ijaarah is bound to cause a certain harm, it
will affect the employee himself or somebody else; therefore, such an
ijaarah contract is not valid due to the absence of benefit and the
presence of its opposite, namely harm.
2. 'Intended': This is one of the conditions or restrictions stated by
jurists in the course of defining ijaarah7; they have given such examples
7 This means the intended usage of the usufruct has to be stated. [Translator's Note]
156 Al-Adl (37)

as 'leasing food to decorate one's table'8 or a tree for its shade', for the
intended benefit of trees is normally its fruits amongst other things.9
3. 'Lawful': The contract will not be considered valid if the
intended usage of the usufruct is deemed forbidden, such as asking
someone to unlawfully seize somebody else's property in return for part
of such a usurped property.
4. 'In return for a known remuneration': The remuneration refers
to the pay the employee receives for something he has done. It has to be
fixed and known by both contracting parties at the time of concluding
contract; otherwise, it will trigger a dispute over the pay due. Therefore,
the remuneration ought to be fixed and known to both of them to avoid
such disputes.
5. 'Prevailing [remuneration]': This means the pay in return for the
employee's services must be the going rate in the area of work carried
out. For instance, if an employer tells the employee, "Harvest the fruits
in that orchard and I will give you 100 kg of fruit." This type of pay is
fixed, not prevailing. However, if he says, "If you do so, I will give you
one tenth of the yield", then it is certainly known to be a prevailing
practice to give one tenth of the yield for doing so; for if it happens that
while the employee is harvesting the fruit and a natural disaster
destroys all the crops, dispute will certainly flare up in case the contract
is concluded without stating the prevailing remuneration. In this case,
the employee will certainly demand 100 kg of the harvested fruits even
if the crops that have survived the disaster only amount to 100 kg.
However, if one-tenth of the yield is the stated remuneration in the
contract, the employee will demand only this amount no matter how big
or small the yield is.
6. 'In exchange for the services which the employee (ajeer)
renders': This is one of the most important conditions and restrictions in
this definition, for this is the most important thing in the definition on
which other things depend. Indeed, this restriction must be stipulated in
order to exclude all other forms of ijaarah, in which the remuneration
does not constitute part of the employee's services. Ijaarah in return for
8 Al-Mughnee, 8/129.
9 Badaa'i'as-Sanaa'i', 4/192. Ibn Qudaamah mentioned that this is permissible. See Al-
Mughnee, 8/127.
Al-Adl (37) 157

part of the work done can only be established when, for instance, a
person agrees with another one to collect his debts from other people in
return for part of the collected debts which the employee has collected.
This type of ijaarah is undoubtedly different from other forms of ijaarah
in which remuneration is not from the very work carried out. An
example of the latter type is when a person employs another one to
guard his house in return for a fixed amount of money on a daily or
monthly basis. The remuneration the employee receives in this case is by
no means part of the work he has done, hence the importance of this
particular condition in this definition.
It is worth mentioning that one of the conditions of ijaarah which has
not been mentioned in this definition is cognizance of the period of time
because the contract is related to a job which has to be done and so that
work and the time period are not combined; for doing so is bound to
lead to disputes. It may be that the time period elapses while the work is
not complete and vice versa. Therefore, only the work is to be specified
to avoid unnecessary forms of gharar 10in the body of the ijaarah
contract.11
Section Three: Ruling Regarding Ijaarah and

Evidence in Favour of its Legality
There is a consensus of opinion among Muslim scholars regarding
the fact that the ijaarah contract is one of the permissible and legal forms
of contracts and that this legality is based on the Qur'an, the Prophet's
Sunnah, the consensus of Muslim scholars as well as the dedicates of
reason. Details of these are as follows:
1. Evidence from the Qur'an12:
Almighty Allah says,
a. "So if they breastfeed [your infants] forward them their due
payment."13
10 This is a transaction containing elements of fraud on the part of one party, thus
disadvantaging the other party. [Translator's Note]
11 Mughnee al-Muhtaaj, 2/461; Al-Mughnee, 8/36; and Kash-shaaf al-Qinaa', 4/11.
12 Badaa'i' as-Sanaa'i', 4/173; Adh-Dhakheerah, 5/371; Al-Haawee al-Kabeer, 7/388; and Al-
Mughnee, 8/6.
158 Al-Adl (37)

The evidence this verse provides is that suckling infants varies

depending on how many times and how often the infant has been
breastfed as well as the abundance or paucity of breast milk. Therefore,
if ijaarah is permissible in this particular case, ijaarah in other than this is
all the more permissible.14
b. "One of the two [daughters of Prophet Shu'ayb] said, 'Oh my
father, engage his services, as indeed the best of men for you to hire is
the strong, the trustworthy.' He said [to Moosaa], 'Indeed, I desire to
marry you one of these two daughters of mine, on condition that you
serve me for eight years. Should you, however, complete ten it will be
[as a favour] from you.'"15
The evidence this verse furnishes is that Almighty Allah mentions
the hire contract concluded between the righteous man and Prophet
Moosaa (may Allah's peace be upon them). Indeed, if the law before the
advent of Islam is introduced to the Islamic Law without being
abrogated, it certainly becomes a binding law on Muslims and is thus
considered part of the Islamic law, and not part of the previous laws
before Islam.16
2. Evidence from the Sunnah:
a. Abu Hurayrah (may Allah be pleased with him) narrated that
Allah's Messenger (may Allah's peace and blessings be upon him) said,
"Allah the Almighty said, 'I will be an opponent to three types of people
of the Day of Judgment: (1) One who makes a covenant in My Name but
proves treacherous, (2) One who sells a free person [as a slave] and eats
his price; and (3) One who employs a labourer and takes full work from
him but does not pay him for his labour.'"17
b. 'Aa'ishah (may Allah be pleased with her) said, "Allah's Messenger
(may Allah's peace and blessings be upon him) and Abu Bakr hired a
man from the tribe of Banu ad-Deel as an expert guide who was a pagan
of the Quraysh. The Prophet (may Allah's peace and blessings be upon
him) gave him their two riding camels and took a promise from him to
13 Surat at-Talaaq, 65:6.

14 Al-Haawee al-Kabeer, 7/388.
15 Surat al-Qasas, 28:26-27.
16 Badaa'i' as-Sanaa'i', 4/173; and Ad-Dakheerah, 5/371.
17 Reported by Al-Bukhaaree, Book of Hiring, p. 361, hadeeth no. 2270.
Al-Adl (37) 159

bring their riding camels in the morning of the third day to the cave of
Thawr."18
These two Prophetic reports provide ample evidence as to the
permissibility and legality of ijaarah contracts. The hadeeth qudsee19 makes
it clear that Allah the Almighty will be an opponent to any employer
who fails to pay his employee his due wages. Were the jaarah contract
not permissible, failure to give the labourer his due pay would not entail
such a severe punishment. The second report states that the Prophet
(may Allah's peace and blessings be upon him) concluded an ijaarah
contract with someone to guide him to the way leading to Madeenah
when he left Makkah, hence the permissibility and legality of the ijaarah
contracts.
3. Consensus of Opinion
Many scholars have cited in their books the unanimous agreement of
Muslim jurists regarding the legality of ijaarah contracts. They have also
explained that those scholars who have opposed the consensus of
opinion of jurists in this regard expressed their opinion only after this
consensus had been established, hence the insignificance of their
consensus.
Imaam Ibn Al-Mundhir (may Allah have mercy upon him) writes,
"They (i.e. Muslim jurists) have all unanimously agreed that the ijaarah
contract is well-established."20
Imaam al-Kaasaanee (may Allah have mercy upon him) writes, "As
for consensus, the entire Muslim community have unanimously agreed
[as to the legality of ijaarah contracts] long before the time of al-
Asamm21, for the ijaarah contracts have been concluded since the time of
the Prophet's companions (may Allah be pleased with them) until this
18 Reported by Al-Bukhaaree, Book of Hiring, p. 361, hadeeth no. 2263.

19 A hadeeth qudsee, or sacred hadeeth, is one which the Prophet (may Allah's peace and
blessings be upon him) narrated from Almighty Allah; The meaning thereof is from
Allah but the wording is that of the Prophet himself. [Translator's Note]
20 Al-Ijmaa', p. 145. See Badaa'i' as-Sanaa'i', 4/173; Al-Umm, 4/26; Bidaayat al-Mujtahid,
5/127; and Al-Mughnee, 8/6.

21 Al-Asamm and Ibn 'Ulayyah (may Allah have mercy upon them) furnished evidence
as to the impermissibility of concluding ijaarah contracts; scholars, however, refuted

their proofs. See Badaa'i' as-Sanaa'i', 4/174; Bidaayat al-Mujtahid, 5/127; Al-Haawee al-
Kabeer, 7/388; and Al-Mughnee, 8/6.
160 Al-Adl (37)

day without anyone disproving of it. Therefore, any opinion which

states otherwise is not to be considered, for it simply opposes the
overwhelming unanimous agreement of scholars."22
4. Dictates of Reason
Ijaarah is undoubtedly a basic human necessity. In fact, not every one
of us can do everything by himself; and even if he can, he can by no
means carry out all his tasks proficiently. If a person wants to build a
house, he may have the necessary money on hand and he may own the
land, but he will certainly need the services of an architect, builders and
workers to build the house. Because not every one of us can afford to
own a house or a vehicle for transport purposes, the need to hire the
usufruct has arisen just as the need of purchasing the corporeal property
has become necessary. Thus if it is permissible to conclude a contract to
sell assets, concluding a contract to sell the usufruct 23 is also
permissible.24
Section Four: Conditions of

The validity of the Ijaarah Contract
Like all other forms of contracts, the ijaarah contract has three
essential elements:
a. Mode of expression
b. The contracting parties (the employer and the employee)
c. The object of the contract (the usufruct and remuneration)25
Each one of these essential elements must be met in order for the
contract to be valid and entail contractual commitments. I will briefly
22 Badaa'i' as-Sanaa'i', 4/174.

23 Sale of usufruct means the sale of the right to utilise goods or usufruct associated with
a given property for a specific period. [Translator's Note]
24 Badaa'i' as-Sanaa'i', 4/174; Al-Haawee al-Kabeer, 7/390; and Al-Mughnee, 8/6.
25 There is a difference of opinion between the majority of Muslim jurists and the
Hanafite jurists as to the number of the essential elements that constitute the contract.
The Hanafites opine that the contract consists only of one essential element, namely
the mode of expression, while the majority of Muslim jurists argue that there are three
essential elements. For details regarding this point, see Badaa'i' as-Sanaa'i', 4/174; Ad-
Dakheerah, 5/372; Mughnee al-Muhtaaj, 2/449; and Kash-Shaaf al-Qinaa', 3/547.
Al-Adl (37) 161

touch on the conditions of these essential elements without elaboration,

for the object here is to discuss a particular point in this paper.
As for the mode of expression, Muslim jurists are agreed that the
ijaarah contract can be established by the mere use of the word 'ijaarah' in
the mode of expression; they have, however, expressed different
opinions as to whether it can established through the use of the words
'sale', 'gift', 'transfer of ownership' and other similar words in the mode
of expression which do not expressly indicate that the contract in
question is an ijaarah contract.26
Each of the two contracting parties, be he the employer or the
employee, must be sane, adult, free who enjoys contractual competence
and can thus consent to the conclusion of the contract. The person who
must have the authority to dispose of the property ought to be the
absolute owner of the corporeal property or the agent of the owner of
his natural or legal guardian.27
Conditions of the usufruct and remuneration include the fact that
they must both be lawful and free from unjustified coercion28, well-
known and fixed29, acceptable in the Shar'aah, has a market value30 and
has the capacity of being delivered or handed over31. The contract must
also relate to the usufruct itself and not to the corporeal property.32
Once these conditions are met, the ijaarah contract becomes valid and
all the rulings relating to it become binding; however, if any one of these
conditions is not fulfilled, the ijaarah contract may not be established and
will thus be deemed invalid.
26 Haashiyat Radd al-Mukhtaar, 6/4; Bulghat as-Saalik, 2/264; Rawdhat at-Taalibeen, 5/173;
Al-Wajeez, 1/230; Al-Mughnee, 8/7; and Kash-Shaaf al-Qinaa', 3/547.
27 Bulghat as-Saalik, 2/264; Haashiyat ad-Dasooqee, 4/3; Rawdhat at-Taalibeen, 5/173;
Mughnee al-Muhtaaj, 2/449; Al-Mughnee, 8/7; and Kash-Shaaf al-Qinaa', 3/547.

28 Haashiyat Radd al-Muhtaar, 4/505; Bulghat as-Saalik, 2/264; Mughnee al-Muhtaaj, 2/453;
Haashiyat Ibn Qaasim 'Alaa ar-Rawdh al-Murbi', 5/303.

29 Haashiyat Radd al-muhtaar, 6/5; Bulghat as-Saalik, 2/264; Mughnee al-Muhtaaj, 2/459; and
Kash-Shaaf al-Qinaa', 3/547.

30 Badaa'i' as-Sanaa'i', 4/193; Bulghat as-Saalik, 2/264; Mughnee al-Muhtaaj, 2/453; and
harh Muntahaa al-Iraadaat, 3/547.

31 Badaa'i' as-Sanaa'i', 5/147; Bulghat as-Saalik, 2/264; Mughnee al-Muhtaaj, 2/454; and
Sharh Muntahaa al-Iraadaat, 2/359.

32 Badaa'i' as-Sanaa'i', 4/175; Haashiyat ad-Dasooqee, 4/20; Rawdhat at-Taalibeen, 5/178; and
Kash-Shaaf al-Qinaa', 3/561.
162 Al-Adl (37)

Section Five: Forms of Ijaarah in Return for Part of

the Work Done
The ijaarah contract in return for part of the work done has taken
numerous forms both in the past and the present. In fact, some of these
forms which were prevalent in the past still continue to pervade certain
areas today. However, some of the forms mentioned here are considered
new and were by no means known in the past, or at least hardly took
place. Practice of these forms of such a contract, both past and present,
varies in that it may be plentiful or scant depending on the nature of the
work done. The reason behind shedding light on some forms of this
kind of contract prior to mentioning the jurists' different opinions in this
regard is to give a clear idea about this kind of contract and to show that
the employee's remuneration in the past did form part of the work he
had done for his employer. Furthermore, these forms are controversial
even among jurists belonging to the same school of thought, and some
others are considered by some to be impermissible not because
remuneration forms part of the work done but due to other reasons.
These forms are as follows:
1. Giving the skin of the sacrificial animal to the butcher in
return for skinning it: Many scholars (may Allah have mercy upon
them) have mentioned this form of ijaarah in return of part of the work
done. In this case, the owner of the sacrificial animal agrees with the
butcher to skin it for him in return for the skin he removes from the
animal. This skin is in actual fact the remuneration the employee
receives for the work he does.
Some scholars have considered such a form of ijaarah to be strictly
prohibited not only because the wages constitute part of the work done
but also because the skin removed may not be sound, as it varies in
terms of thickness from one animal to the other.33
2. Reaping crops, picking fruits and harvesting dates: This is
another form of ijaarah cited by Muslim scholars (may Allah have mercy
33 Al-Mudawwanah, 6/51; 'Iqd al-Jawaahir, 2/836; Adh-Dhakheerah, 5/388; Al-Waseet Fee al-
Madh-hab, 4/155; Nihaayat al-Muhtaaj, 5/268; Ash-Sharh al-Kabeer, 14/295; Al-Insaaf,
14/138; and Sharh Muntahaa al-Iraadaat, 2/355.
Al-Adl (37) 163

upon them)34 even though some of them, especially the Maalikites, have
detailed this particular point. In fact, the Maalikites distinguish between
two types here:
a. If the employer says to the employee, "Harvest all my crops and
take half of the harvest", then this is an invalid agreement because the
employer here makes payment conditional on harvesting the entire
crops and the employee may be unable to complete his work. In fact, the
employee is not allowed to leave the work before it is complete, for the
conditions of the ijaarah contract is binding on both contracting parties,
and if the employee leaves out his work without completing it he is not
entitled to the agreed upon wages.
b. If he says, "Harvest the crop and take half of the harvest", then
this is a valid agreement, because in this case he is not obliged to harvest
all the crops before he receives his pay; rather for whatever crops he
harvests he will take half of the harvested yield.35 Similar to this is the
employer's statement, "You will have half of the yield of whatever you
harvest, pick or reap", for the employee should be able to do so unless he
is prevented by indolence. However, if he says, "Shake off the trees and
take half the fruit", then this is absolutely invalid according to the
majority opinion because shaking off the trees does not depend on his
ability. He only does his job but does not know whether or not any fruits
will fall down, as fruits may be firmly or loosely attached to the trees.36
3. Pressing olives in return for taking part of the oil produced:
This is also one of the forms cited by some Muslim scholars in the course
of discussing wages in books on hiring. In this form of ijaarah, scholars
have also distinguished between pressing all the olives in return for a
certain wage and pressing them in return for part of the oil produced. 37
4. Weaving clothes in return for some of them: Weaving was an
ancient textile art and craft which was common in the past; Muslim
jurists have mentioned it in their books because people occupied
34 'Umdat al-Qaari', 12/166; Al-Waseet Fee al-Madh-hab, 4/155; and Kash-Shaaf al-Qinaa',
3/525.
35 'Iqd al-Jawaahir ath-Thameenah, 2/837; Adh-Dhakheerah, 5/389.
36 Mawaahib al-Jaleel, 5/400.
37 'Iqd al-Jawaahir ath-Thameenah, 2/838; Mawaahib al-Jaleel, 5/400; and I'laam al-
Muwwaqqi'een, 4/19.
164 Al-Adl (37)

themselves with it.38 A person who owned wool or other material would
hire the services of another person to weave it for him and the labourer
would then get some of the weaved material in return for the job he had
done. People would also hire the services of labourers to weave rugs,
blankets and other cloths or weaving palm leaves to make mats, for
example, and the labourers' remuneration would be some of the things
they had made themselves.
5. Milling grains in return for part of the flour or bran produced:
In fact, this is one of the most familiar forms of ijaarah in return for part
of the work done. It is known in the books of jurisprudence as 'qafeez39
at-tahhaan40' (the miller's qafeez). In this kind of ijaarah contract, a person
who owns grains agrees with a miller to mill them for him in return for a
specified amount of flour or bran; here, flour and bran are produced by
the labourer himself and thus his due wages will be in the form of part
of flour or bran produced.41 In fact, some of the Maalikite jurists have
distinguished between flour and bran as a form of payment by virtue of
the difference between their properties, while some others have not
made such a distinction.42
6. Tending livestock in return for some of the offspring or milk:
This form of ijaarah has been mentioned by Hanbalite jurists who have
distinguished here between two types: Remuneration is paid in the form
of taking either some of the livestock or some of their offspring, milk or
wool. According to them, only the first type is valid because
remuneration is specified and well-defined in the first type but it is not
38 Al-Jaami' as-Sagheer, p. 439; 'Umdat al-Qaari', 12/166; Ar-Ri'aayatu as-Sughraa, 1/395;

and Al-Muhallaa, 8/198.
39 Qafeez (pl. aqfizah and qufzaan) is a n ancientdry measure which is equal to 12 saa'. There is a difference of
opinionasto itsequivalentingrammes. Somehavesaid39138grammeswhileothershavesaid26064grammes.

See An-Nihaayah Fee Ghareeb al-Hadeeth, 4/90; Mu'jam Maqaayees al-Lughah, 5/115;
Lisaan al-'Arab, 4/262; Al-Misbaah al-Muneer, p. 195; Mu'jam Lughat al-Fuqahaa', p. 336.
(One saa' is equal to four (4) mudd, and one (1) mudd is equal to the amount held by cupping the two hands
together. It is a measure by volume not by weight. [Translator's Note]
40 At-tahhaan (miller) is the person who works in, operates, or owns a grain mill and
makes flour. See Mu'jam Maqaayees al-Lughah, 3/444; Lisaan al-'Arab, 9/134.
41 Mushkil al-Aathaar, 1/307; Al-Waseet Fee al-Madh-hab, 4/155 Nihaayat al-Muhtaaj, 5/268;
AriRi'aayatu as-Sughraa, 1/395; and Al-Muhallaa, 8/199.

42 Mawaahib al-Jaleel, 5/397.
Al-Adl (37) 165

as such in the second type. Another report states that both types are
valid.43
7. Collecting debts in return for part of the money collected: Some
scholars (may Allah have mercy on them have mentioned this form of
ijaarah in their books44. In actual fact, it is one of the most common forms
of contracts at the present time due to the prevalence of dishonesty and
untrustworthiness amongst Muslims. This is the reason behind the
affluent people's disinclination to lend their money to those in strained
circumstances because they feel that their money will eventually be lost
or that the borrowers will unnecessarily keep postponing paying off
their outstanding debts. Indeed, the prevalence of such cases in many
societies has prompted many creditors to employ some people who
would engage in collecting their debts in return for part of the money
collected so that they would not suffer any further losses. Such
prosperous people tend to do this because they know full well that if
they pay debt-collectors well in advance for their jobs the debt-collectors
may keep the collected money for themselves, hence losing more money
as a result of running after debts which may never be repaid. In order to
avoid this and to take a sensible course of action, moneylenders resort to
have their money collected in return for part of it.
8. Managing property in return for some of the proceeds:
Property requires continuous follow-up with respect to maintenance,
rental and rent-collection especially in this day and age, for many
tenants tend to evade the rent they ought to pay, defer rent payment or
be forcibly evicted from the property after occupying it for a long period
of time without even paying the rent at all, in addition to the
accumulating unpaid utility bills, such as electricity and water. This
state of affairs has led many people to turn away from investing in
property altogether. Besides, due to lack of time and forbearance, many
landlords fail to track their properties and so they entrust their
maintenance, rental and rent collection to those who can do so in return
for a specific amount from the collected money.
43 I'laam al-Muwwaqqi'een, 4/19; Al-Insaaf, 14/138; Ghaayat al-Muntahaa, 2/190; and Sharh
Muntahaa al-Iraadaat, 2/255.
44 Nihaayat al-Muhtaaj, 5/268; Majmoo' Fataawaa Ibn Taymiyyah, 30/67; and Kash-Shaaf al-
Qinaa', 3/525.
166 Al-Adl (37)

9. Marketing goods in return for part of the profits: This is a new

form of ijaarah which is very common nowadays. In fact, many
companies, whether they are manufacturing firms or companies that
import foreign goods, stand in need of agents to market their
commodities. Some companies hire sales representatives in return for
certain specified wages, but this is not included in the issue under study.
There are certain companies, however, which do not assign certain
wages for the sales representatives who market their goods; rather, they
agree to pay them commensurate with the goods they market for them,
in which case remuneration is part of the work representatives have
carried out.
10. Pleading court cases in return for part of sum the court
demands certain litigants to pay to their adversaries: Many lawyers
and those who undertake to plead court cases especially in financial
matters receive their honoraria from the money the court makes certain
litigants to pay to their adversaries. In fact, lawyers do not content
themselves with such honoraria in most cases and so they demand a
certain specified amount which they receive prior to dealing with the
court case and another sum after winning the case and the execution of
the court judgment. Once the court case is won and the judgment is
executed, lawyers receive whatever sums previously agreed upon;
otherwise, they settle for the sum they have received before. In this case,
the amount they receive after the court case is won is part of the lawyers'
work.
11. Delivering a vehicle or a riding animal for use in return for
part of the proceeds: This is also another form of ijaarah in return for
part of the work done; for it is the person who receives the vehicle or the
riding animal who actually uses it and thus whatever proceeds gained
from its use comes from this person's work and that whatever wages he
receives will be part of the work he has carried out. 45 The Maalikite
jurists deem such a form of hire contract invalid, but they have made a
distinction between two cases in this regard:
45 Al-Mudawwanah, 6/51; Al-Ma'oonah, 2/1102; Ibn 'Abd Al-Barr's Al-Kaafee, 2/754; I'laam
al-Muwwaqqi'een, 4/19; Al-Furoo', 7/104; Al-Insaaf, 14/138; Sharh Muntahaa al-Iraadaat,
2/255; and Al-Muhallaa, 8/199.
Al-Adl (37) 167

a. A case where the vehicle or riding animal is hired: the earnings

will go to the worker while the owner will receive the so-called ujrat al-
mithl.46
b. A case where the owner asks the employer to use the vehicle or
riding animal in return for half of the proceeds. In this case all the
earnings go to the owner while the worker receives the prevailing price
which is normally paid for this particular service (ujrat al-mithl). The
difference between the two cases is that the hire in the first case relates
to the vehicle or riding animal while in the second one it relates to the
employer.47
These are some of the forms of ijaarah in return for part of the work
done. Indeed, presentation of these forms of the matter contract under
study will certainly help clarify the issue the ruling regarding which has
caused a great deal of controversy among scholars. This is the subject
matter of the following section.
Section Six: Scholars' Opinions Regarding Ijaarah

in Return for Part of the Work done
Remuneration in the hire (ijaarah) contract is similar to the price in
the sale contract in that the employee or the person who undertakes to
use the commodity on hire is to receive such remuneration. As has
previously been mentioned, scholars (may Allah have mercy upon
them) are unanimously agreed that remuneration is to be particularly
specified and known to both contracting parties and that the commodity
has the capacity of being delivered. There are some transactions in the
hire contract, however, about which scholars have expressed different
opinions regarding their permissibility due to their disagreement as the
ability to deliver the commodity or knowledge regarding remuneration.
One such transactions is when the worker's wages in return for the work
he has carried out is part of the work that he does, as has been made
clear in the various forms of ijaarah contracts mentioned in the previous
46 This means the prevailing rate; the price which is normally paid for a given service.
[Translator's Note]
47 Al-Ma'oonah, 2/1102; and Ibn 'Abd Al-Barr's Al-Kaafee, 2/754.
168 Al-Adl (37)

section. Anyway, ijaarah in return for part of the work done can be one
of the following two cases:
a. Remuneration constitutes the going rate in exchange for the
services rendered, such as when the employer says to the employee,
"Once you collect SR 100,000 Ali owes me, you will receive 10% of it."
b. Remuneration does not constitute the going rate for the services
rendered but is specified, such as when the employer says to the
employee, "Harvest the fruits in this orchard and your remuneration
will be 100 kg of the harvested fruit crops."
Scholars (may Allah have mercy upon them) have expressed a
difference of opinion as to the ijaarah contract in which remuneration
agreed upon by the two contracting parties in exchange for the service
rendered. Four opinions have been put forward here:
1. First Opinion: Ijaara in return for part of the work done does not
constitute a valid contract. This is the well-known view held by the
Hanafites48, the Shaafi'ites49, the well-known view held by the
Maalikites50 and one of the opinions of the Hanbalites 51. In fact, some of
the pious predecessors52 also expressed the same opinion.
2. Second Opinion: Ijaarah in return for part of the work done is a
form of transaction that is deemed disliked (makrooh). This was the
opinion of an-Nakha'ee and one of the two views held by al-Hasan al-
Basree (may Allah have mercy on them both). 53
3. Third Opinion: This form of contract constitutes a valid contract
whether remuneration constitutes the going payment or is specified.
48 Al-Mabsoot, 15/90; Al-Hidaayah, 3/242; Badaa'i' as-Sanaa'i', 4/192; and Haashiyat Radd
Al-Muhtaar, 6/58.
49 Al-Wajeez, 1/230; Rawdhat at-Taalibeen, 5/176; and Nihaayat al-Muhtaaj, 5/268.
50 Al-Ma'oonah, 2/1101; and Ibn 'Abd Al-barr's Al-Kaafee, 2/754; Bukghat as-Saalik, 2/268;
and Haashiyat ad-Dasooqee, 4/5.

51Ar-Ri'aayatu as-Sughraa, 1/395; Al-Insaaf, 14/137; Al-Furoo', 7/104; and Sharh Muntahaa
al-Iraadaat, 2/355.
52 Al-Muhallaa, 8/199; Al-Mughnee, 7/118; 'Umdat al-Qaari', 12/166; and Nayl al-Awtaar,
6/33.
53 Al-Muhallaa, 8/199; and Al-Mughnee, 7/116.
Al-Adl (37) 169

This was the view held by the the Dhaahirees54 (may Allah have mercy
upon them).55
4. Fourth Opinion: This form of contract is only valid if
remuneration constitutes the going payment for the work done but is
invalid if remuneration is specified. This is the view held by some
Hanafites56, one of the opinions of the Maalikites57, the well-known view
held by the Hanbalites58, and the view held by a group of the pious
predecessors59 as well as the view held by some leading Muslim scholars
such as Shaykh al-Islaam Ibn Taymiyyah60 and Ibn al-Qayyim61 (may
Allah have mercy upon them all).
Evidence brought forward in Support of these

Opinions
1. Evidence in Support of the First Opinion:
 First Evidence: Abu Sa'eed al-Khudree (may Allah be pleased
with him) narrated that the Prophet (may Allah's peace and blessings be
upon him) had forbidden hiring62 a stallion63 [for mating and breeding
purposes];'Ubayd-ul-Laah64 added "…and the miller's qafeez".65
54 The Dhaahirees are those who interpret religious texts according to their literal
meaning. [Translator's Note]
55 Al-Muhallaa, 8/198.
56 Al-Jaami' as-Sagheer, p. 439; Al-Mabsoot, 15/90; Badaa'I' as-Sanaa'i', 4/192; and Majma'
al-Anhur, 1/388.
57 Bidaayat al-Mujtahid, 5/142; and Bulghat as-Saalik, 2/268.
58 Ash-Sharh al-Kabeer, 14/282; Ar-Ri'aayatu as-Sughraa, 1/395; Al-Insaaf, 14/137; Al-
Furoo', 7/104; Ghaayat al-Muntahaa, 2/190; and Kash-Shaaf al-Qinaa', 3/525 and 554.
59 'Abdur-Razzaaq's Al-Musannaf, 8/100; Al-Mughnee, 7/118; Al-Muhallaa, 8/199; 'Umdat
al-Qaari', 12/166; and Nayl al-Awtaar, 6/33.

60 Majmoo' Fataawaa Ibn taymiyyah, 30/67.
61 Ighaathat al-Lahfaan, 2/42; and I'laam al-Muwwaqqi'een, 4/19.
62The Arabic word 'asb (translated here as hiring) used in the report means semen of a
horse, camel or other animals. It also refers to the money paid as a wage for hiring a
stallion for breeding purposes. See An-Nihaayah Fee Ghareeb al-Hadeeth, 3/234; and
Mu'jam Maqaayees al-Lughah, 4/317.
63 The Arabic word 'fahl' (pl. fuhool and fihaal) translated here as 'stallion' means a male
horse that is fully grown, especially one that is used for breeding (stallion). It also
refers to the male date palm tree which is applied to the carpels of a female flower to
170 Al-Adl (37)

This report, they argue, clearly states that it is strictly forbidden to

take "the miller's qafeez". This means giving wheat to the miller to grind
it in return for a qafeez of the flour, in which case the wages for grinding
wheat is in the form of a qafeez of the wheat the miller has milled.
Therefore, every form of ijaarah in which remuneration constitutes part
of the work done by the worker is strictly forbidden. 66
 Second Evidence: Were ijaarah in return for part of the work
done valid, the worker would be considered a partner in the first part of
the work done, in which case he does not deserve remuneration in
return for this work as he works for himself. 67
 Third Evidence: Remuneration in the case of ijaarah in return
for part of the work done is not particularly known or accurately
obtain fruit. Two words are used in this sense, namely fuhhaal (pl. fahaaheel) and fahl
(pl. fuhool). See Al-Misbaah al-Muneer, p. 176.
64 'Ubayd-ul-Laah ibn Moosaa; Sunan ad-Daaraqutnee, 3/47.
65 Reported by ad-Daaraqutnee, 3/47, hadeeth no. 195; Al-Bayhaqee in As-Sunan al-
Kubraa, 5/339; also reported by al-'Ajlee in Taareekh ath-Thiqaat, p. 458, no. 1739; Abu
Ya'laa in Al-Musnad, 2/8, no. 1020; At-Tahhaawee in Mushkil al-Aathaar, 1/307; 'Abdul-
Haqq al-Ashbeelee in Al-Ahkaam al-Wustaa, 3/241 from ad-Daaraqutnee, but Ibn al-
Qattaan al-Faasee contended that this report is not mentioned in Sunan a-Daaruqtnee as
such; see Bayaan al-Wahm wal-Eehaam al-Waaqi'eena fee Kitaab al-Ahkaam, 2/271, no. 270.
Adh-Dhahabee categorises it in Meezaan al-I'tidaal (7/90, no. 9256) as 'munkar' (rejected
as it contradicts a stronger hadeeth) and describes Hishaam in the chain of narrators as
being ignorant; Muntaqaa al-Akhbaar, 6/ 32; Nasb ar-Raayah, 4/139; and Ibn Hajar in Al-
Mataalib al-'Aaliyah, 1/400, no. 1340. Ibn Hajar writes in At-Talkhees al-Habeer (3/69),
"The chain of narrators [of this report] contains Hishaam abu Kulayb who narrated it
from Ibn Abu Nu'aym from Sa'eed, and he is not known. Ibn al-Qattaan said this." In
fact, numerous scholars have confirmed Hishaam to be as such, including Ibn Abee
Haatim in Al-Jarh Wat-Ta'deel, 9/64; the confirmation to this effect by Imaam Ahmad,
Yahyaa ibn Ma'een and and Ibn Hibbaan has also been quoted in Ibn Hibbaan's Ath-
Thiqaat, 7/567; Al-Mizzee also quotes such confirmation about Hishaam in Tahdheeb al-
Kamaal, 7/404, no. 7176; Mughlataay, however, does not mention it in Ikmaal Tahdheeb
al-Kamaal; and it may be that whoever says about him that he has confirmed Hishaam
as such is certainly mistaken; see Faydh al-Qadeer, 6/335. Sheikh Al-Albaanee
categorises this hadeeth as authentic (saheeh) in Irwaa' al-Ghaleel, 5/259 as well as in
Saheeh al-Jaami' as-Sagheer, 6/68, hadeeth no. 6844.
66 Mushkal al-Aathaar, 1/307; Al-Mughnee, 7/118; At-Talkhees al-Habeer, 3/69; Al-Badr al-
Muneer, 7/41; Faydh al-Qadeer, 6/335; and Mughnee al-Muhtaaj, 2/453.

67 Al-Mabsoot, 15/83; and Badaa'i' as-Sanaa'i', 4/192.
Al-Adl (37) 171

specified, which involves a great deal of risk68 that is bound to lead to

gharar69which the Islamic Law (Sharee'ah) has strictly prohibited.70
 Fourth Evidence: The benefit or usufruct to be utilised in the
contract of ijaarah in return for part of the work done is not particularly
known either, for such a contract is concluded without specifying the
usufruct to be utilised in that the employee does not know about the
usufruct he can derive in return for his services.71
 Fifth Evidence: This type of contract is analogous to the
contract of sale in two ways:
a. If the sold item is an asset, it is not permissible to stipulate the
condition of deferring its delivery if uncertainty and ambiguity in the
transaction (gharar) is expected. Similarly, the wages whose amount is
not known or clearly specified must not be deferred either. 72
b. Just as selling something which remains part of one's property is
not valid, such as selling half of one's share, this kind of contract of hire
is not valid either, as it comprises the same thing. 73
 Sixth Evidence: The employer is considered unable to deliver
payment, for the payment he himself receives comes as a result of the
employee's work; therefore, he is not considered to be able to give
68 Al-Mabsoot, 14/84; Al-Ma'oonah, 2/1102; 'Umdat al-Qaari', 12/166; and Mughnee al-
Muhtaaj, 2/453.
69 Gharar means the uncertainty and ambiguity in transactions which comes from events
whose happening or not happening is subject to chance and as a result is unknown to

the parties of a transaction at the time of the contract. [Translator's Note]
70 The hadeeth confirming this is the one reported by Muslim, Book of Transactions, hadeeth
no. 3808, on the authority of Abu Hurayrah. Hasaat (lit. pebbles) is a type of sale
practised by the Arabs in the Jaahiliyyah (pre-Islamic era) and prohibited by the
Prophet Mohammed (may Allah's peace and blessings be upon him) in which the sale
was determined by the casting of pebbles. Classical commentators mention three
forms of the hasaat sale, namely (1) the seller would say to the would-be purchaser,
"When I throw the pebbles in my hand, then the deal is closed and binding on you";
(2) the seller would say to the would-purchaser, "I shall sell you the commodity which
your pebbles hit" or (3) in a land sale, the seller would say, "I shall sell you the plot of
land whose dimensions are defined by the extent to which you throw this pebble." The
hasaat sale, like the habal al-habalah sale, was ostensibly prohibited because of the gharar
(uncertainty) which characterized the contract which governed it. [Translator's Note]
71 Sharh Muntahaa al-Iraadaat, 2/355.
72 Al-Ma'oonah, 2/1102.
73 Al-Wajeez, 1/239; and Al-Waseet, 4/155.
172 Al-Adl (37)

payment as he relies in this on the work of the employee 74. In this case,
the contract becomes null and void due to the employer's inability to
deliver the object of the contract (i.e. remuneration).
2. Evidence in Support of the Second Opinion:
I have not come across any evidence in support of this opinion
which states that such a contract is disliked (makrooh), but I assume that
those who hold such a view have based this opinion on the hadeeth
which states that giving grains to the miller to grind it in return for a
qafeez (certain measure) of flour is prohibited.
3. Evidence in Support of the Third Opinion:
Evidence brought forward by those who hold this view, that is
Ijaarah in return for part of the work done constitutes a valid contract
whether remuneration constitutes the going payment or is specified, is
similar to that brought forward by those who hold the fourth opinion,
that is Ijaarah in return for part of the work is only valid if remuneration
constitutes the going payment for the services rendered but is invalid if
remuneration is specified. Perhaps what advocates of this opinion mean
by the 'specified' remuneration is one that is tantamount to the
prevailing rates of wages and not the one that is absolutely specified.
4. Evidence in Support of the Fourth Opinion:
First Evidence: 'Abdullaah Ibn 'Umar (may Allah be pleased with
him) said, "The Prophet (may Allah's peace and blessings be upon him)
made a deal with the people of Khaybar that they would have half the
fruits and vegetation of the land they cultivated.75"76
This hadeeth makes it clear that the Prophet (may Allah's peace and
blessings be upon him) made a deal with the Jews of Khaybar
concerning the cultivation of a well-known and specified part of land in
return for half of the produce, hence the permissibility of such a hire
contract.
Second Evidence: The Prophet's companions (may Allah be pleased
with them) engaged in concluding this kind of contract and
74 Al-Hidaayah, 3/242; Majma' al-Anhur, 1/388; Haashiayat Radd al-Muhtaar, 6/57; Al-
Ma'oonah, 2/1102; and Nihaayat al-muhtaaj, 5/268.
75 Reported by al-Bukhaaree, Book of Agriculture, hadeeth nos. 2328 and 2329 and Muslim,
Book of Agriculture, hadeeth no. 3962.

76 Ighaathat al-Lahfaan, 2/42.
Al-Adl (37) 173

unanimously agreed on its permissibility; for they would employ people

who would cultivate their lands for them in return for part of the
produce, and none of them considered such a transaction forbidden
except that which the Prophet (may Allah's peace and blessings be upon
him) clearly declared as such.77
Third Evidence: This form of hire contract is analogous to
mudhaarabah78. Just as it is absolutely permissible to provide someone
with one's capital in return for part of the profit thereof, an investor or
owner of an asset is also permitted to provide an employee with this
asset to develop and derive profit from it in return for some of these
profits.79
Fourth Evidence: This kind of hire contract is one of the
requirements of the fundamentals of the Islamic Law (Sharee'ah); for if
the yield which a utilizable property produces is sound both contracting
parties reap the benefits; otherwise, they both bear the losses. 80
Fifth Evidence: People's interests are realised through this kind of
hire contract, for both contracting parties derive a certain benefit by
concluding it. In fact, the employee (ajeer) does his best to complete the
work agreed upon as soon as possible, and both he and the employer
benefit from such work.81
Sixth Evidence: Both the work to be carried out and the
remuneration in this hire contract are well-known and clearly specified;
therefore, anyone who is fully aware of the kind of work to be
completed will definitely be aware of the prevailing remuneration
thereof.82
77 I'laam alMuwwaqqi'een, 4/19.

78 Mudhaarabah (also called Qiraadh) is a profit and loss sharing contract. In it, one
party provides capital and the other manages the enterprise. If there is loss, the
provider of capital bears the financial loss while the worker loses his labour. If there is
profit, both parties share it in proportions agreed upon at the time of the contract.
[Translator's Note]
81 Al-Mabsoot, 15/90; and I'laam al-Muwwaqqi'een, 4/19.
82 Bidaayat al-Mujtahid, 5/142; and Ash-Sharh al-Kabeer, 14/282.
174 Al-Adl (37)

The Preponderant View

The opinion which seems to have more in its favour (Allah knows
best) is the fourth one, namely that Ijaarah in return for part of the work
done is only valid if remuneration constitutes the prevailing
remuneration for the work done, for the following reasons:
1. The evidence which the advocates of this opinion advance is more
cogent and more authentic, for it is derived from authentic Prophetic
traditions, the unanimous agreement of the Prophet's companions,
analogical reasoning or the urgent need in people's lives to conclude
such contracts.
2. The evidence based on the hadeeth narrated by Abu Sa'eed the
Khudree (may Allah be pleased with him) can be refuted as follows:
This hadeeth is controversial as to its authenticity. Indeed, many
Muslim scholars classify it as unauthentic, a mention of which has
previously been stated. Al-Muwwafaq Ibn Qudaamah (may Allah have
mercy on him) writes in this regard, "We do not know of this hadeeth and
thus it is not to be relied on."83 Shaykh al-Islaam Ibn Taymiyyah (may
Allah have mercy on him) also writes about it, "This hadeeth is rejected
and has no legal force and it is not to considered to be of any value in
the reliable hadeeth books, nor has it been cited as evidence by any of the
leading scholars."84 The fact that this hadeeth is not authentic is made
clear as follows:
There is a controversy as the classification of Hishaam Abu Kulayb
in the chain of narrators.
There was no miller in Madeenah who would mill grains in return
for wages. That is why Shaykh al-Islaam Ibn Taymiyyah said, "There was
84 Majmoo' Fataawaa Ibn Taymiyyah, 30/113. This statement seems to contradict the fact
that such a report has been reported by ad-Daaraqutnee and al-Bayhaqee. It may be
that Ibn Taymiyyah (may Allah have mercy on him) was not aware that such a report
was mentioned in the reliable hadeeth books, and as the rule states, 'al-muthbit
muqaddamun 'alaa al-naafee' (the one who affirms additional knowledge is given
preference over the one who negates it); or it may be that what he actually meant by
the 'reliable hadeeth books' was the well-known books on hadeeth given that he
mentioned that ad-Daaraqutnee had compiled his book As-Sunan with a view to citing
strange and uncommon reports in Islamic jurisprudence. See Al-Fataawaa al-Kubraa,
5/299. It may also be that what he meant by his statement that 'none of the leading
scholars cited it as evidence' was the past scholars. Allah knows best.
Al-Adl (37) 175

no miller in the City of the Prophet (i.e. Madeenah) who would mill
[grains] in return for wages, nor was there a baker who would bake
[bread] in return for wages."85
The residents of Madeenah during the time of the Prophet (may
Allah's peace and blessings be upon him) did not have a measure known
as qafeez; in fact, such a term was introduced only after the conquest of
Iraq, which clearly shows that it is not to be attributed to the Prophet
(may Allah's peace and blessings be upon him but rather to the Iraqis. 86
Even if assume that this hadeeth is authentic, it does not contain any
form of prohibition as to the stipulation of part of flour as the prevailing
payment [in return for milling wheat], but rather an object known as
qafeez. Just like in muzaara'ah87, if a person stipulates that a certain
definite portion of land be cultivated or something specified, then the
share-dropping contract is deemed invalid.88
Prohibition in the report applies to milling a pile of grains whose
weight is not known in return for one qafeez89 of the milled grains, for the
rest of the grains with the exclusion of the qafeez that goes to the miller is
unknown. It is like selling the whole pile except for one qafeez of it. If its
weight is known in that the number of qafeezes is identified and the
employer says, "Mill these ten qafeezes [of grains]", then the agreement is
absolutely valid for both grains and flour. If the pile consists of grains,
then he has hired him to mill nine qafeezez [of grains] in return for one
qafeez of wheat that goes to the miller; and if it consists of flour then the
employee receives one-tenth thereof while the employer receives nine
tenths, in which case he becomes his partner regarding the designated
part, [that is one-tenth].90
This prohibition is open to several possibilities. It may be that the
texture of flour in terms of fineness and coarseness is not known, that
85 Ibid.
86 Ibid.
87 Muzaara'ah (share-cropping) is an agreement between two parties in which one agrees
to allow a portion of his land to be used by the other in return for a part of the produce
of the land. [Translator's Note]
88 Ibid.
89 Ighaathat al-Lahfaan, 2/44; At-Talkhees al-Habeer, 3.69; Faydh al-Qadeer, 6/335; and
Muntaqaa al-Akhbaar, 6/32.

176 Al-Adl (37)

remuneration is only paid as a result of the other party's work or that

remuneration is deferred to an unknown date. 91 Therefore, taking the
hadeeth to mean a certain possibility requires evidence.
3. The second evidence advocates of the first opinion bring forward,
namely that the employee is considered a partner in the first part of the
work, in which case he does not deserve remuneration in return for this
work as he works for himself, can be refuted as follows:
The admission that partnership is established between the two
parties and therefore there is no objection for such partnership to be
established. In fact, it is more appropriate than the hire contract (ijaarah)
according to some Muslim jurists (may Allah have mercy on them.
The admission that it is considered a form of hire contract (ijaarah)
but the so-called contradiction that the employee has certain rights and
obligations even though he is entitled to a rightful remuneration is not
acceptable, for he has the right to receive remuneration for the work he
has completed and is at the same time under a legal obligation to carry
out the duty he has been assigned.92
4. The third evidence they advance, namely that remuneration in this
contract is not well-known and a great deal of risk is involved in
concluding such a contract can be disproved by the fact that
remuneration is not actually unknown, for specifying the work to be
carried out and given that remuneration is prevailing and customary
will certainly dispel any lack of knowledge or ambiguity in the terms of
contract (jahaalah). Even if slight knowledge or ambiguity in the terms of
contract occurs then it is deemed forgivable, as is the case in all other
contracts.
5. Their claim that the benefit or usufruct to be utilised in the
contract of ijaarah in return for part of the work done is not particularly
known can be disproved in the same way the third evidence they have
advanced is refuted, for it cannot be accepted that lack of knowledge or
ambiguity regarding the usufruct affects the terms of the contract.
6. Their use of analogical reasoning to liken ijaarah to sale in that
deferring payment is not permissible if uncertainty and ambiguity in the
transaction (gharar) is expected is not to be accepted either, as has
91 Al-Badr al-Muneer, 7/41.

Al-Adl (37) 177

already been explained. Therefore, analogical reasoning in this case has

no legal force.
7. Their use of analogical reasoning to liken ijaarah to selling
something which remains part of one's property and to claim that it is
not permissible to sell such a thing is not acceptable either, for it is
possible to separate wages in the ijaarah contract in return for part of the
work done from whatever one possesses after work has been completed.
8. The claim that the employer is considered unable to deliver
payment because the payment he himself receives comes as a result of
the employee's work can be confuted in that the employer is by no
means unable to deliver payment, for the object of the contract is the
utilisation of the usufruct and the remuneration. Indeed, this is legally
approved as in the case of muzaara'ah (share-cropping) and is clearly
perceived to be the common practice between the contracting parties. 93
9. Advocates of the second opinion are in agreement with advocates
of the fourth opinion regarding the validity of this type of contract.
However, if their claim that the ijaarah contract in return for part of the
work done is deemed 'disliked' (makrooh) on the basis of the hadeeth
narrated by Abu Sa'eed al-Khudree (may Allah be pleased with him),
refutation of such evidence has already been mentioned.
10. As for the evidence furnished by those who hold the third view,
if what is meant by 'specified' remuneration is one that is tantamount to
the prevailing payment then they are in total agreement with the
advocates of the fourth opinion. If, however, by 'specified' remuneration
is meant absolute remuneration, then this can be disproved as follows:
The hadeeth narrated by Raafi' ibn Khadeej (may Allah be pleased
with him) who said, "We worked on farms more than anybody else in
Madeenah. We used to rent the land and say to the owner, 'The yield of
this portion is for us and the yield of that portion is for you [as the rent].'
One of those portions might yield something and the other might not.
So, the Prophet forbade us to do so."94 In this hadeeth, the Prophet (may
Allah's peace and blessings be upon him) forbade specifying a certain
portion of land and clarified the reason behind such prohibition, for only

94 Reported by al-Bukhaaree, Book of Agriculture, hadeeth no. 2332; and Muslim, Book of
Transactions, 3953.
178 Al-Adl (37)

one of the two patches of land may produce something or it may be that
the produce of one of them may be higher than the other, which will
certainly lead to malignancy and spite. Islam has laid down laws which
aim at putting an end to anything that is bound to lead to such bitter
feelings.
The 'specified' remuneration that is not tantamount to the prevailing
payment may cause disputes between the contracting parties as a result
of lack of knowledge or ambiguity in the terms of contract (jahaalah). If,
however, this 'specified' remuneration is one that is tantamount to the
prevailing payment, an example of which is when the debt to be
collected is SR 100,000 and the employer tells the employee that he will
give him SR 10,000 in return for collecting the debt, then if the employee
collects the whole debt, he will receive his wages in full; if, however, he
collects only part of the debt, then he will receive wages commensurate
with the amount collected, because this amount (i.e. SR 10,000) actually
constitutes one tenth of the entire amount to be collected; therefore, such
specification is tantamount to the prevailing remuneration.
If the remuneration in the ijaarah contract in return for part of the
work done is specified, it will add more elements of fraud on the part of
one party to the disadvantage of the other party (gharar) in the contract.
Therefore, it is not proper to combine a slight form of gharar which
results from ijaarah in return of part of the work done and gharar which
comes as a result of specifying remuneration. Rather, it is more
appropriate to settle for one of them so that gharar will not affect the
validity of the contract.
Section Seven: Adaptability of the Ijaarah Contract

in Return for Part of the Work Done
We have mentioned in the foregoing pages that Muslim jurists have
expressed a difference of opinion as to the ruling regarding ijaarah in
return for part of the work done; we have also demonstrated that the
preponderant view in this regard is the one which states that Ijaarah in
return for part of the work is only valid if remuneration constitutes the
prevailing payment for the work done and that the conclusion of such a
contract is absolutely valid. However, scholars, be they those who
Al-Adl (37) 179

consider it valid or invalid, are not agreed as to the adaptability of such

a contract. We should bear in mind here the various and rather different
forms of this type of ijaarah contract, for the employer may hand some
money over to the employee in order to undertake a certain job or he
may not give him anything as in the case of collecting debts. This is
perhaps the reason behind the disagreement as to the adaptability of this
kind of contract. For various kinds of contracts fit these forms and they
vary from the ijaarah contract to the mushaarakah95 contract with all its
types, be they nudhaarabah96, muzaara'ah97 or musaaqaat98. Furthermore,
the adaptability of this type of contract is not mentioned in all the forms
of ijaarah; rather it is mentioned in only some of them. Besides, many
Muslim scholars (may Allah have mercy on them) have not touched
upon the issue of adaptability. They have rather confined themselves to
discussing this issue in their books, particularly in the chapters on ijaarah
or mudhaarabah. Based on the foregoing discussion, we can generally
limit the adaptability controversy regarding this type of making
contracts to two views:
The First View: This type of contract falls within the category of
mushaarakah (partnership) contract rather than the ijaarah contract. This
is the opinion of Imam Ahmad99 (may Allah have mercy upon him). Ibn
95 Musharakah (partnership) is a standard Islamic transaction in which two or more

parties enter into any one of several related types of partnerships. In a typical
mushaarakah agreement, two or more parties agree to provide capital (ra's al-maal)
towards the financing of a commercial venture, share profits according to a stipulated
ratio and share losses on the basis of equity participation. [translator's Note]
96 Mudhaarabah (trust financing): The term refers to a form of business contract in which
one party brings capital and the other personal effort. The proportionate share in
profit is determined by mutual agreement. But the loss, if any, is borne only by the
owner of the capital, in which case the entrepreneur gets nothing for his labour. The
financier is known as 'rabb-al-maal' and the entrepreneur as 'mudharib'. Mudhaarib in a
mudhaarabah contract is the person or party who acts as entrepreneur. [Translator's
Note]
97 Muzaara'ah (share-cropping) is an agreement between two parties in which one agrees
to allow a portion of his land to be used by the other in return for a part of the produce
of the land. [Translator's Note]
98 Musaaqat is a type of partnership in which the owner of an orchard agrees to share a
stipulated portion of the produce of the orchard's trees with a worker, in exchange for
the latter's irrigation of the garden. [Translator's Note]
180 Al-Adl (37)

al-Qayyim (may Allah have mercy upon him) was also in favour of this
opinion.100
Al-Muwwaffaq Ibn Qudaamah (may Allah have mercy on him)
writes, "[Imaam] Ahmad has mentioned it in such a way as to liken it to
muzaara'ah (share-cropping), stating 'that it is acceptable to hand over a
piece of cloth [to someone] in return for one third or one fourth of the
proceeds, as evidenced by the hadeeth narrated by Jaabir who said that
the Prophet (may Allah's peace and blessings be upon him) made a deal
with the people of Khaybar that they would have half the fruits and
vegetation of the land they cultivated'. This clearly indicates that it is
permissible to conclude such a contract, as it is similar to musaaqaat and
muzaara'ah but not to mudhaarabah or mu'aajarah101."102
The erudite scholar Ibn al-Qayyim (may Allah have mercy on him)
also writes in this connection, "According to us, mughaarasah103 is
absolutely permissible…Profits of planting are equally shared out
between them, in the same way that it is permissible to hand his capital
over to him (i.e. the employer) to undertake a business or an investment
activity and the profits are equally shared out between them, or to hand
over his land to him to cultivate it and the profits are equally shared out
between them, or to hand over fruit-bearing trees to tend and the fruits
are equally shared out between them, or to hand over his cows, sheep or
camels to tend and the milk and offspring are equally shared out
between them, or to hand over his olives to press and the oil produced is
equally shared out between them, or to hand over his riding animal to

101 Mu'aajarah is synonym of ijaarah. [Translator's Note]
103 Mugharasah is a type of agricultural contract in which a landowner and a worker
agree that, in return for the worker's planting and tending of fruit-bearing trees on the
land owner's field, the landowner will assign to him a share of the orchard's harvest.
Both Hanafite and Hanbalite jurists (the latter also call the transaction munaasabah)
discuss mughaarasah in their fiqh works. Two valid forms of the contract have been
mentioned: (1) The landowner supplies the necessary materials (e. g. twigs) and bears
related expenses (e. g. fixture transportation) while the worker tends the trees for a
fixed period. After the expiration of this period, the worker receives a fixed wage or a
fixed portion of the orchard. (2) The worker supplies the materials and bears related
expenses and receives a share of the harvest. The second more closely resembles
muzaara'ah. [Translator's Note]
Al-Adl (37) 181

engage in some form of business and the proceeds are equally shared
out between them, or to hand over his horse to him to use in a military
expedition and the share of the booty is equally shared out between
them, or to hand over his canal to cause its water to well forth and the
water is equally shared out between them, and similar cases. Indeed, all
these [transactions] are valid… The excuse of those who deem such
transactions impermissible is that they have considered such
transactions to represent forms of ijaarah…the correct view, however, is
that they are all permissible."104
The Second View: This type of contract falls within the category of
the mu'aajarah agreement; this is the view held by the majority of
scholars105, and this is the reason why some scholars have deemed such
a contract impermissible, as has been mentioned in the previous section.
Evidence Furnished in Support of these Views
Evidence in Support of the First View
Advocates of the first view base their argument on the principle of
equity participation106, in which case the joint venturers share profits
according to a stipulated ratio and share losses in accordance with their
contributed capital. This principle makes both contracting parties equal
under all circumstances, in both times of fear and hope. This is the case
in partnerships where profits are equally shared out and losses are
borne by both contracting parties. They also argue that this is the best
form of justice. However, if this form of transaction falls under ijaarah,
the employee will definitely receive his remuneration but the employer
will oscillate between the soundness and destruction of remuneration,
hence the risk involved in such a transaction. 107
Evidence in Support of the Second View
Supporters of the second view argue that these forms of ijaarah in
return for part of the work done do not constitute types of partnership
(mushaarakah) contract unless what is meant by this is mudhaarabah (trust
104 I'laam al-Muwwaqqi'een, 4/19.

105 Ibn 'Abd al-Barr, Al-Kaafee, 2/754; 'Iqd al-Jawaahir, 2/837; Ash-Sharh al-Kabeer, 14/138;
and Sharh Muntahaa al-Iraadaat, 2/355.
106 This refers to the so-called juristic concept of mu'awadhah (mutual commitment).
[Translator's Note]
107Ighaathat al-Lahfaan, 2/44; and I'laam al-Muwwaqqi'een, 4/20.
182 Al-Adl (37)

financing). In fact, it is not correct to judge it by analogy with the

mudhaarabah agreement for the following two reasons:
Mudhaarabah (partnership) wherein the owner of capital provides the
capital in the form of stock-in-trade ('urood) is not valid.
Mudhaarabah can only be carried by trading with the corporeal
property or asset (‘ayn), but this is not permissible to sell or to take out of
the possession of its owner.108
This argument was refuted as follows:
Their argument that mudhaarabah wherein the owner of capital
provides the capital in the form of stock-in-trade ('urood) is not valid is
not acceptable.
Even if we assume that it is not valid, the controversial issue can be
judged by analogy with irrigation (musaaqaat) and share-cropping
(muzaara'ah) and not with trust financing (mudhaarabah) with stock-in-
trade because stock-in-trade includes trading in and using capital and
even changing it with other than it, as opposed to the disputed issue; for
the corporeal property or asset remains as it is and it is not to be
utilised; therefore, likening it to mudaarabah with stock-in-trade is
wrong.109
It is permissible to conclude contracts regarding the assets that can
be developed and has the potential to grow through work in return for
part of the proceeds that result from such development, such as dirhams
and dinars110, fruit-bearing trees in irrigation (musaaqaat) and the land in
share-cropping (muzaara'ahi).111
The Preponderant View
In my estimation, the preponderant view, and Allah knows best, is
that the type of contractual agreement under study can be classified as a
type of ijaarah contract, and not as a type of mushaarakah (partnership)

109 Al-Mughnee, 7/116; Ighaathat al-Lahfaan, 2/44; and Kash-Shaaf al-Qinaa', 3/525.
110 According to Islamic law, the Islamic dinar is a gold coin with a specific weight of 22k
gold (91.7%) equivalent to 4.25 grammes. The Islamic dirham is a specific weight of
pure silver equivalent to 3.0 grammes. 'Umar ibn al-Khattaab (may Allah be pleased
with him) established the known standard relationship between them based on their
weights: "7 dinars must be equivalent to 10 dirhams." [Translator's Note]
Al-Adl (37) 183

agreement, be it mudhaarabah (trust financing), musaaqaat (irrigation) or

muzaara'ah (share-cropping), for the following reasons:
The party with a need, namely the employer in all these forms of
ijaarah transactions, does not intend to enter into a partnership with
anyone. All he wants is that the employee completes the work assigned
to him for which he receives the wages agreed upon, either as a way to
prompt him to complete the work or for fear of paying his wages
without having the work he assigned to him completed. Therefore, if the
employer does not intend to enter into a partnership with anyone, how
can we consider the contract he concludes with an employer a
partnership (mushaarakah) contract?
None of the types of partnership (mushaarakah) contracts mentioned
by Muslim jurists (may Allah have mercy upon them)112 applies to the
forms of ijaarah in return for part of the work done previously
mentioned. Therefore, how can we consider such a contract a category of
partnership agreement? Let those who are of this opinion then inform us
of the type of partnership that applies to these forms of ijaarah so that all
the rulings regarding this type of partnership agreement are applied to
it.
Those who consider this type of contract to fall within the category
of mudhaarabah agreement ought to know that mudhaarbah agreement is
certainly different from those forms, for even if we assume that
mudhaarabah agreement wherein the capital is in the form of stock-in-
trade ('urood) is not valid, such stocks-in-trade do not go back to
112These are (1) al-abdaan, (2) Al-wujooh, (3) Al-mufaawadhah and (4) al-'inaan. Al-abdaan
(Partnership in services) is one where all the partners jointly undertake to render some
services for their customers, and the fee charged from them is distributed among them
according to an agreed ratio. Al-wujooh (Partnership in goodwill). Here the partners
have no investment at all. They purchase commodities on deferred price by getting
capital on loan because of their goodwill and sell them at spot. The profit so earned is
distributed between them at an agreed ratio. Al-mufaawadhah: (Capital & labour at
par): All partners share capital, management, profit and risk in absolute equals. It is a
necessary condition for all four categories to be shared amongst the partners; if any
one category is not shared, then the partnership becomes al-'inaan partnership. Every
partner who shares equally is a trustee, guarantor and agent on behalf of the other
partners. Al-'inaan: A more common type of partnership contract where equality in
capital, management or liability might be equal in one case but not in all respect,
meaning either profit is equal but not labour or vice versa. [Translator's Note]
184 Al-Adl (37)

To consider this type of contract to be a mushaarakah (partnership)

agreement by analogy with muzaara'ah and musaaqaat is not acceptable
either, for analogy is used here only to support the view which states
that ijaarah in return for part of the work done is permissible, but not to
classify it as a type of a partnership contract.
Many Muslim jurists (may Allah have mercy upon them) cite these
forms of transactions in their books under ijaarah , and the well-known
form of transaction amongst them is the one dubbed 'the miller's qafeez',
which may have been applied to many of such transaction forms. The
fact that such transaction forms are mentioned under ijaarah in juristic
works supports the view that it is a form of ijaarah. ]
Once this form of contractual agreement becomes established as a
form of ijarah, it follows that everything regarding the hire contract
applies to it in terms of enforceability, responsibility for financial
coverage in the case of destruction or damage or anyone whose opinion
is to be taken into account when controversy arises. Allah knows best.
Conclusion
Following are the main findings of the present research:
The Arabic word 'ijaarah' is derived from the word 'ajr' (reward, the
money received as payment for the work done); in the terminology of
Muslim jurists, it can be defined as a contract for a using an intended
and lawful usufruct for a fixed period of time in return for a fixed wage.
The expression 'ijaarah in return for part of the work done' can be
defined as a contract for using a certain intended and lawful usufruct in
return for a known and prevailing remuneration in exchange for the
services which the employee (ajeer) renders.
This type of contract is valid according to the unanimous agreement
of all Muslim jurists, and thus whoever states otherwise his view is
rejected.
Almighty Allah has legislated this form of contract due to people's
urgent need to conclude such contracts; otherwise, people will suffer
great hardship in their everyday lives.
The Islamic Law (Sharee'ah) has legalised the conclusion of such
contracts, but it has stipulated a number of conditions with a view to
realising clarity of terms and freeing them from any forms of uncertainty
Al-Adl (37) 185

as to the existence of the subject-matter of the contract and

deliverability, quantity or quality of the subject-matter as well as
contractual ambiguity as to the consideration and the terms of the
contract (gharar); for these lie at the root of disputes among contracting
parties.
Ijaarah in return for part of the work done includes a wide variety of
forms. Some of these forms are rarely practised while others are Widely
practised today; these forms include pleading court cases, collecting
debts, managing property and marketing products. Muslim jurists (may
Allah have mercy on them) have mentioned these forms because they
were prevalent in their own times, and some of these old forms may be
judged by analogy with the novel ones.
Muslim jurists (may Allah have mercy on them) have expressed four
different views as to the validity of ijaarah in return for part of the work
done, and the view that has more in its favour, in my estimation, is the
one that states that such a contractual agreement is absolutely valid if
remuneration constitutes the prevailing rates of wages in exchange for
the services which the employee renders.
The view in favour of ijaarah in return for part of the work done
serves to lighten people's burdens and helps them realise their worldly
interests, and Islam actually aims to realise such interests.
Notwithstanding the fact that he ijaarah in return for part of the work
done smacks of some kind of uncertainty and ambiguity in the
transaction (gharar), this form of gharar is so slight that it does not by any
means render the contract void.
The ijaarah in return for part of the work done is a form of ijaarah and
not a partnership agreement (mushaarakah) and thus it entails all the
rulings that generally apply to the ijaarah contract.
Finally, I thank Almighty Allah who has assisted me in completing
the present research paper, and I pray to Him to guide us to all that it
sound and right and to send His peace and blessings upon the best of
His creation as well as upon his family and companions.
186 Al-Adl (37)

Hiring Services in Return For Part of The Service Rendered

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Hiring Services in Return For Part of The Service Rendered

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A Refereed Study

Hiring Services in Return for Part

Dr. 'Abdur-Rahmaan ibn 'Uthmaan al-Jul'ood1

1 Dr. 'Abdur-Rahmaan al-Jul'ood is assistant professor in the Department of Islamic

2 Surat az-Zukhruf, 43:32.

152 Al-Adl (37)

Al-Adl (37) 153

154 Al-Adl (37)

Section One: Linguistic and Technical

Al-Adl (37) 155

Section Two: Definition of Ijaarah in Return for

156 Al-Adl (37)

Al-Adl (37) 157

Section Three: Ruling Regarding Ijaarah and

158 Al-Adl (37)

The evidence this verse provides is that suckling infants varies

13 Surat at-Talaaq, 65:6.

Al-Adl (37) 159

18 Reported by Al-Bukhaaree, Book of Hiring, p. 361, hadeeth no. 2263.

5/127; and Al-Mughnee, 8/6.

as to the impermissibility of concluding ijaarah contracts; scholars, however, refuted

160 Al-Adl (37)

day without anyone disproving of it. Therefore, any opinion which

Section Four: Conditions of

22 Badaa'i' as-Sanaa'i', 4/174.

Al-Adl (37) 161

touch on the conditions of these essential elements without elaboration,

Mughnee al-Muhtaaj, 2/449; Al-Mughnee, 8/7; and Kash-Shaaf al-Qinaa', 3/547.

Haashiyat Ibn Qaasim 'Alaa ar-Rawdh al-Murbi', 5/303.

Kash-Shaaf al-Qinaa', 3/547.

harh Muntahaa al-Iraadaat, 3/547.

Sharh Muntahaa al-Iraadaat, 2/359.

Kash-Shaaf al-Qinaa', 3/561.

162 Al-Adl (37)

Section Five: Forms of Ijaarah in Return for Part of

Al-Adl (37) 163

164 Al-Adl (37)

38 Al-Jaami' as-Sagheer, p. 439; 'Umdat al-Qaari', 12/166; Ar-Ri'aayatu as-Sughraa, 1/395;

opinionasto itsequivalentingrammes. Somehavesaid39138grammeswhileothershavesaid26064grammes.

AriRi'aayatu as-Sughraa, 1/395; and Al-Muhallaa, 8/199.

Al-Adl (37) 165

166 Al-Adl (37)

9. Marketing goods in return for part of the profits: This is a new

Al-Adl (37) 167

a. A case where the vehicle or riding animal is hired: the earnings

Section Six: Scholars' Opinions Regarding Ijaarah

168 Al-Adl (37)

and Haashiyat ad-Dasooqee, 4/5.

Al-Adl (37) 169

Evidence brought forward in Support of these

al-Qaari', 12/166; and Nayl al-Awtaar, 6/33.

170 Al-Adl (37)

This report, they argue, clearly states that it is strictly forbidden to

Muneer, 7/41; Faydh al-Qadeer, 6/335; and Mughnee al-Muhtaaj, 2/453.

Al-Adl (37) 171

specified, which involves a great deal of risk68 that is bound to lead to

whose happening or not happening is subject to chance and as a result is unknown to

172 Al-Adl (37)

Book of Agriculture, hadeeth no. 3962.

Al-Adl (37) 173

unanimously agreed on its permissibility; for they would employ people

77 I'laam alMuwwaqqi'een, 4/19.