A Brief of Islamic Law

Laws of Partnership

1005. If two persons make an agreement that they would trade with the goods jointly owned by them, and would divide the profit between themselves, the partnership will be valid.

1006. If some person enter into a partnership to share the wages from their labour, like, if a few barbers or labourers agree mutually that they would divide between themselves whatever wages they earn, that partnership is not in order. But if they enter into a mutual compromise that, say, half of what one earns will be given to the other, for a fixed period, in exchange of half of what the other earns, this transaction will be valid, and thus each will be a partner in the wages of the other.

1007. If two person enter into a partnership, on the terms that each of them would purchase a commodity on his own responsibility, and each would be responsible for the payment of its price, but would share the profit which they earn of them makes the other will be a partner in it, which means that he and his partner are responsible for the debt, then they will be considered partners in that commodity.

1008. The persons who become partners under the rules of partnership, must be adult and sane, and should have intention and free volition for becoming partners. They should also be able to exercise discretion over their properties. Hence, if a feeble-minded person who spends his wealth impudently, enters into partnership, it is not order, because such a person has no right of disposal over his property.

1009. If a condition is laid down in an agreement of partnership, that the partner who manages, or does more work than the other partner, or does more important work than the other, will get larger share of the profit, it is necessary that he should be given his share as agreed upon.

1010. Partnership has two kinds: 1. Partnership with permission, which occurs when the capital is jointly shared by the partners before the deal of partnership is made. 2. Partnership with exchange which establishes when either of the parties presents his property for partnership, and then each of them exchanges half of his property with half of the other party's property. If it is not specified as to which of the partners will buy and sell with the capital, in the partnership of permission neither of them can conclude any transcations with that capital withuot the permission of the other. But in the partnership of exchange each of them can make transaction in such a manner that the partnership is not harmed.

1011. The partner who has been given the right of discretion over the capital, should act according to the agreement of partnership. For example, if it or will purchase the property form a particular place, he should act according to the agreement. However, if no such agreement is made with him, he should conclude transactions in the usual manner, and carry on in such a way that no loss is suffered in the partnership.

1012. If a partner who transacts business with the capital of the partnership, sells and purchases things contratly to the agreement made with him, or in the case of absence of any agreement concludes transactions in a manner which is not nor mal, the transaction made by him in both the cases will be correct and valid; but if such a transaction results in a loss, or a part of wealth is squandered, then the partner who has acted against the agreement or the usual norm, will be responsible for the loss.

1013. If in a permission partnership one of the partners dies, or becomes insane, or unconscious, other partners cannot continue to exercise right of discretion over investment held in the partnership. And the same rule applies when one of them becomes feeble-minded, that is, spends his property without any consideration of Sharian, as well as custon.

Orders Regarding Compromise (Sulh)

1014. Compromise means that a person agrees to give to another person his own property or a part of the profit gained from it, or waives or forgoes a debt, or some right, and that other person also gives him in return, some property or profit from it, or waives his debt or right in consideration of it; and even if a person gives or another person his property to profit from it, or waives his debt or right without claiming any consideration, the compromise will be in order.

1015. It is necessary that the person who gives his property to another person by way of compromise, should be adult and sane, and should have the intention of making compromise, and none should have compelled him to make the compromise, and he should not also be feeble-minded from whom his own wealth is made inaccessible, or a bankrupt who has no right to dispose of his property.

1016. If a person wants to make a compromise with another person in respect of the debt which he owes, or in respect of his right, the compromise will be valid only if the opposite person agrees to it. But, if he wants to faorgo the debt or right owed to him, the acceptance by the opposite person is not necessary.

1017. If a debtor knows the amount he owes, but the creditor does not know and makes compromise with the debtor for an amount less than what is owed to him, like, if the creditor has to receive $50 but he unknowingly makes a compromise for $10, the balance of $40 is notHalal (allowed) for the debtor, except that he himself tells the creditor what he actually owes him, and seeks his agreement. Alternatively, the debtor should be sure that even if the creditors had known the exact amount of the debt, he would have still settled for that lesser amount.

1018. As long as the buyer and the seller do not leave the place where a transaction was concluded, they can cancel the transaction. Also, if a buyer purchases an animal, he has the right to cancel the transaction within three days. And similarly, if the buyer does not pay within three days, for the commodity purchased by him, and dose not take delivery of the commodity, the seller can cancel the transaction, as stated in rule no. However, one who makes a compromise in respect of some property, does not possess the right to cancel the compromise in these three cases. However, if the other makes unusual delay in delivering the property over which the compromise was reached, or if it has been stipulated that the property will be delivered immediately, and the opposite party does not act according to this condition, the compromise can be cancelled. And similarly, compromise can also be cancelled in other cases which have been mentioned in connection with the rules relating to purchase and sale, except in the case when one of the two parties in compromise has been defrauded, in which the compromise can not be cancelled if the compromise is for ending the quarrel; and even in other conditions, the defrauded person cannot, as an obligatory precaution cancell the compromise.

1019. A compromise can be cancelled if the thing received by means of compromise is defective. However, it is a matter of Ishkal, if the person concerned desires to take the difference of the price between the defective thing and the one without defect.

1020. If a person makes a compromise with another person with his property and imposes the condition that after his death the other person will, for example, make that property Mawqufah, and that person also accepts this condition, he should carry it out. Rules Regarding Lease/Rent

1021. The person who gives something on lease, as well as the person who takes it on lease, should be adult and sane, and should be acting on their free will. It is also necessary that they should have the right of discretion over the property. Hence, a feeble-minded person who does not have the right of disposal or discretion over his property, his leasing out anything or taking anything on lease is not valid. The same applies to a bankrupt person, in the wealth over which he has no right of discretion. Of course, such a person can give himself for hire.

1022. If a person takes a house, shop or room on lease, and the owner of the property imposed the condition that only he (the lessee) can utilise it the lessee cannot sublet it to any other person for his use, except that the new lease is such that its advantage devolves on the lessee himself, like, if a woman takes a house or a room on lease, and later marries, and gives the room or house on lease For her own residence to her husband. And if the owner of the property does not impose any such condition, the lessee can lease it out to another person, but, as a precaution, he should seek the permission of the owner before giving it on lease. And if he wishes to lease it out for a higher amount in cash or kind, he can do so, if he has carried out some work on it, like, white washing or renovation, or if he has suffered some expenses in looking after the property.

1023. If a person who is hired on wages, lays down a condition that he will work for the hirer only, he (the hirer) cannot lease out his service to another person, except in the manner mentioned in the foregoing rule. And if the hired person does not lay down any such condition, the hirer can lease out his services to another, but he cannot charge more than the agreed wage for the hired person. Similarly, if he himself accepts employment and then hires someone to do the task, he cannot pay him less than what he will receive himself, unless he joins that hired person in completing some of his work.

1024. If a person takes or hires something other than a house, a shop, a room, a ship, or a hired person, say, he hires a land on lease, and its owner does not lay down the condition that only he himself can utilise it, and the lessee leases it out to another person on a higher rent, it will be a matter of Ishkal.

1025. If a person takes for example, a house or a shop on lease for one year, on a rent of one hundred Toomans, and uses half portion of it himself, he can lease out the remaining half for one hundred Toomans. However, if he wishes to lease out the half portion on a rent higher than that on which he has taken the house, or shop on lease, like, if he wishes to lease it out for hundred and twenty Toomans, he can do it only if he has carried out repairs etc. in it.

Conditions Regarding the Property Given on lease

1026. The property which is given on lease, should fulfil certain conditions:

(i) It should be specific. Hence, if a person says to another, I have given you one of my houses on lease’, it is not in order. (ii) The person talking the property on lease should see it, or the lessor should give its particulars in a manner which gives full information necessary about it. (iii) It should be possible to deliver it. Hence, leasing out a horse which has run away, and the hirer can not possess it, will be void. However, if the hirer can manage to get it, the lease will be valid. (iv) Utilisation of the property should not be by way of its destruction or consumption. Hence, it is not correct to give pead, fruits and other edibles on lease for the purpose of eating. (v) It should be possible to utilise the property for the purpose for which it is given on lease. Hence, it is not correct to give a piece of land on lease for farming, when it does not get sufficient rain water, and is also not irrigated by cancel water. (vi) The thing which a person gives on lease should be his own property, and if he gives the property of another person on lease, it will be correct only it its owner agrees to it.

Conditions for the Utilisation of the Property Given on Lease

1027. The utilisation of the property given on lease causes four conditions:

(i) That it should beHalal (allowed). Than if a property is for Halal (allowed) uses only, or it is stipulated that it should be used for Halal (allowed) purposes, or before concluding the contract the parties agree to use it for Halal (allowed) purposes, and the contract is based on that, the contract will be void. Hence, leasing out a shop for the sale or storage of Alcoholic drinks, or providing transportation by leasing for it, is void.

(ii) That doing the act or giving that service free of charge should not be obligatory in the eyes of Shariah. Therefore, as a precaution it is not permissible to receive wages for teaching the rules ofHalal (allowed) and Halal (allowed), or for the last ritual services to the dead, like washing it, shrouding atc.. And as a precaution paying money in lieu of the services done should not be deemed futile in public.

(iii) If the thing which is being leased out can be put to several uses, then the use permissible to the lessee should be specified. For example, if an animal, which can be used for riding or for carrying a load is given on hire, it should be specified at the time of concluding the lease contract, whehther the lessee may use it for riding or for carrying a load, or may use it for all other purposes.

(iv) The nature and extent of utilisation should be specified. In the case of hiring a house or a shop, it can be done by fixing the period, and in the case of labour, like that of a tailor, it can specified that he will sew and stitch a particular dress in a particular fashion.

1028. If the period of lease is not specified, and the lessor says to the lessee, At any time you stay in the house you will have to pay rent at the rate of $10 per month, the lease contract is not in order.

1029. If the owner of a house says to the lessee, `I have leased out this house to you for f10 per month`, or says, ~I hereby lease out this house to you for one month on a rent of $10, and as long as you stay in it thereafter the rent will be $10 per month ~, if the time of the commencement of the period of lease was specified or it was known, the lease for the first month will be proper.

Miscellaneous Rules Relating to Lease/Rent

1030. If a person has leased out something, he cannot claim its rent until he has delivered it. And if a person is hired to perform an act, he cannot claim wages until he has performed that act, except in the cases where advance payment of wages is an accepted norm, like deputyship for A*ajj.

1031. If a lessor delivers the leased property, the lessee should pay the rent, even if he may not take the delivery, or may take the delivery but may not utilise it till the end of the period of lease.

1032. If a person is hired to perform a task on a particular day against wages, and gets ready on that day to perform the task, the person who hired him should pay him the wages, even if he may not assign that task to him. For example, if a tailor is hired to sew a dress on a particular day, and he gets ready to do the work, the hirer should pay him the wages even if he may not provide him with the cloth to sew, irrespective of whether the tailor remains without work on that day or alternatively does his own or somebody else's work.

1033. If it transpires after the expiry of the period of lease, that the lease contract was void, the lessee should give the usual rent of that thing to the owner of the property. For example, if a person takes a house on lease for one year on a rent of $100, and learns later that the lease contract was void, and if the normal current rent of the house is $50,he should pay $50. And if its normal current rent is $200, and the person who leased it out was its owner, or his agent, and was aware of the current rate of rental, it is not necessary for the lessee to give him more than $100. But if a person other than these gave it on lease, the lessee should pay $200. And the same order applies, if it is known during the period of lease, that the lease contract is void in relation to the outstanding rent for the past period.

1034. If a thing taken by a person on lease is lost, and if he has not been negligent in looking after it nor extravagant in its use, he is not responsible for the loss. Also, if, for example, a coth given to a tailor is damaged or destroyed, when the tailor has not been extravegant, and has also not shown negligence in taking care of it, he need make any replacement.

1035. If an artisan or a tailor loses the thing taken by him, he is responsible for it.

1036 If a butcher cuts off the head of an animal, and makes it Halal (allowed), he must pay its price to its owner, regardless of whether he charged for slaughtering the animal or did it gratis.

1037. If a person circumcisesa child, and as a consequence of it the child dies, or is injured, the person who circumcises is responsible if he has been careless or made a mistake, like having cut the flesh more than usual. However, if he was not careless, or did not make any mistake, and the child dies due to circumcision, or sustains an injury, he will not be responsible, provided that, he had not been consulted earlier about the possible injury, nor was he aware that the child would be injured.

1038. If a doctor gives medicines to a patient with his own hands, or prescribes a medicine for him, and if the patient sustains harm or dies because of taking that medicine, the doctor is responsible, even if he had not been careless in treating the

1039. If a doctor tells a patient, ~If you sustain harm I am not responsible’ ~, and then exercises due precaution and care in the treatment, but the patient sustains harm or dies, the doctor is not responsible.

1040. If the lessor or the lessee realises that he has been cheated, if he did not notice at the time of making the lease contract that he was being cheated, he can cancel the lease contract as explained in the rule no. However, if a condition is laid down in the contract of lease, that even if the parties are cheated, they will not be entitled to cancel the contract, they cannot cancel it.

1041. If a person takes something on lease, and during the period of lease it becomes so impaired that it is not fit for the required use, the remaining lease contract will be void, and the lessee can cancel the lease for the past period also. And for that period, he may pay usual rent.

1042. If an employer appoints a contractor to recruit labourers for him, and if the contractor pays the labourers less than what he receives for them from the employer, the excess he keeps is Halal (allowed) for him and he should return it to the employer. And if the contraetor is givena full contract aby complate a builiding, and is authorised to either construct it himself or give a sub-contract to another party, if he joins with the other party in doing some work, and then entrusting him to do the remaining work against lower payment than what he has collected from the employer, the surplus with him will beHalal (allowed) for him.

Rules Regarding Ju`alah (Payment of Reward)

1043. Ju`alah means that a person promises that if a particular work is completed for him, he will give a specified amount for it. For example, he declares that if anyone recovers his lost property, he will give him $10. One who makes such a declaration is called Ja`il, and the person who carries out that work is called ~Amil~. one of the differences between Ju`alah and hire is that, in the case of hire, the hired person is bound to do the job after the agreement, and the hirer becomes indebted to the hired person for his wages, whereas in the case of Ju`alah, the person who agrees to do the job is at liberty to abandon it if he so wishes; and before he compltes the job assigned, the person who declared the reward or payment does not become indebted to him.

1044. A person who declares the payment or reward should be adult and sane, and should have made it with his free will and intention, and should have the right of disposal and discretion over his property. Therefore, the declaration by a feeble-minded person who squanders his property indiscreetly is not in order. Similarly, a bankrupt cannot declare any reward or payment from that part of wealth over which he has not right of discretion.

1045. The task for which the declaration was made by the employer should not be Halal (allowed), futile, or one of those obligatory acts which should necessarily be performed free according to Shariah. Hence, if a person declares that he will give $10 to a person who drinks alcohol, or traverses a dark passage at night without any sensible purpose, or offers his obligatory prayers, the employment will not be in order.

1046. It is not necessary for the employer for Ju`alah to specify the reward he would give with all its particulars. If the employee, in this case, is certain that he would not be taken for a stupid or foolish person if he undertook the assignment, it is sufficient. For example, if the employer in Ju`alah tells a person that if he sells a particular stock or goods for more than, say, ten dollars, whatever is the excess will be his, this from of Ju`alah is valid. Similarly, if he says that whosoever finds his horse, that person will own half of it, or that person will be awarded ten kilos of wheat, Ju`alah will be in order.

1047. If a person does not at all mention the amount of reward which he would give for his work for example, if he says, ~I shall give money to the person who finds out my son ~, and does not specify the amount of money, and if some one performs the task, he should pay him according to what is customarily paid for such task.

1048. If the person wishes to cancel the Ju`alah agreement after the employee has started work, it is a matter of Ishkal, except when they come to an agreement.

1049. A person appointed to work in Ju`alah can leave the task incomplete. However, if his failure to complete the task causes harm to the person who appointed him, he must complete it. For example, if a person says, 'If someone operates upon my eye I shall give him so much money ', and a surgeon commences the operation, and if by not completing the operation, the eye will be defective, he must complete it.

1050. If the person appointed to work in Ju`alah leaves the task incomplete, he cannot demand any reward, provided that the Ja`il declares the reward for completing the task, like when he declares that if anyone sews his dress, he will pay him $10. But if he meaned to pay some money for doing any part of the task, he should pay the money for the part done.