Please view and comment on the article on Ijaarah (Leasing) prepared by a Muslim lawyer.
The issue which he has written on is quite simple. There is nothing difficult about it. It is not a matter which requires going beyond the confines of our Math-hab. Yet, you will find the lawyer citing from Al-Mughni which is a Hambali kitaab as well as from Maaliki kitaabs. For the answer to the simple issue of leasing for haraam activities, there is no need for us or for him to seek answers in the kutub of the other Math-habs, if he is a Hanafi as we presume. As far as the mas’alah is concerned, there is no conundrum in our Math-hab. It is a straight
forward issue. Note the following: (1) Leasing premises for any haraam activity is haraam. This is the fatwa of our Math-hab. We do not require the views of the other Math-habs on this issue. Hence, the lawyer quoting from Al-Mughni, etc. is superfluous. (2) For answering this simple question there is also no need to delve into the ikhtilaaf between Imaam Abu Hanifah and Saahibain. The Fatwa of our Math-hab is on the view of Saahibain. Leasing premises for a haraam activity is I’aanat alal ma’siyat (Aiding in sin and transgression). This is the end of the discussion. There is no need for any further elaboration. Nevertheless, we shall dilate a bit
. (3) Leasing premises for haraam activity, e.g. for selling wine, is haraam according to all Fuqaha since this is I’aanat alal Ma’siyat. However, there is difference of opinion on the validity of the transaction (aqd). According to Saahibain, the aqd itself is baatil. According to Imaam Abu Hanifah the Aqd is valid. (4) The effect of this Ikhtilaaf is that the money acquired from this leasing is halaal according to Imaam Abu Hanifah notwithstanding the fact that the lease is not permissible even according to him, while according to Saahibain the money is Waajibut Tasadduq, i.e. it has to be compulsorily given to the poor without niyyat of thawaab. (5) According to one view of Imaam Shaafi, the Aqd is valid as Imaam Abu Hanifah says. However, the official view of the Shaafi Math-hab is the same as the ruling of Saahibain and the other Math-habs, viz., it is not valid.
(6) The contention made by the lawyer in his point No.1 is incorrect. Whilst all the Fuqaha state that the Aqd is not valid, Imaam Abu Hanifah says that it is valid despite the impermissibility of the lease. This fact may be verified from Mabsoot Saraksi and all the kutub of the Ahnaaf. (7) The Ikhtilaaf between Imaam Abu Hanifah and Saahibain on this issue pertains to the lease which explicitly permits the lessee to sell liquor in the leased premises. Since the Ma’qood Alayh is the manfa’ah of the premises, not the sale of liquor, the lease is
valid according to Imaam Abu Hanifah. But, at the same time the lease is faasid according to Imaam Abu Hanifah on the basis of the haraam Wasf (attribute) encumbering the lease. Since the lease is faasid, not baatil, according to Imaam Abu Hanifah, the lessor is entitled to the rent which is halaal or him. But as mentioned earlier, the fatwa of the Hanafi Math-hab is on the view of Imaam Abu Yusuf and Imaam Muhammad. (8) The situation of Ikhtilaaf which the lawyer contends exists between Imaam Abu Hanifah and Saahibain, as mentioned in his point No.2, is incorrect. In this situation there is consensus of all three our Imaams on the validity of the Aqd. There is no factor in this Aqd (the second situation mentioned by the lawyer) to give rise to difference of opinion.
The “second situation” is described by the lawyer as follows: “The second situation covers a case where the landlord leases the premises or a permissible activity as stated in the lease (eg. general dealer). The tenant however voluntarily, and without the consent of the landlord, uses the premises for a prohibited activity. Suchconduct of the tenant is a new independent cause………”. (See the lawyer’ point No.2). The lawyer then states his conclusion regarding this situation as follows: “It is only this situation, that gave rise to a difference in opinion in the Hanafi school between Imam Abu Hanifah, on the one hand, and Imam Abu Yusuf and Imam Muhammad, on the other. The latter still held that the lease was void, and the rental specified impermissible.” This contention is palpably erroneous. There is no reason for Saahibain saying that a perfectly valid lease agreement is invalid. There is nothing in the Aqd to render it invalid. The lease contract expressly specifies a halaal activity to be conducted in the premises. At what stage does this unanimously halaal and valid Aqd become invalid, i.e. baatil, according to Saahibain as alleged by the lawyer? The premises was leased to Zaid for a general dealer’s business. There is no factor which renders the Aqd null and void. The selling of wine by Zaid at a later stage does not even create a Wasf of fasaad relevant to the Aqd (transaction) because there was no mention of this sin at the time of the Aqd. It is a unilateral, later introduction of Zaid into his business, not in the lease contract.There is no Ikhtilaaf (difference) of our Aimmah regarding this “second situation” mentioned by the lawyer. The Ikhtilaaf pertains to the “first situation”.
(9) In his point No.3, the lawyer states: “Imam Abu Hanifah (ra) only permitted a contract that was a means to escape from haram conduct…..” The lawyer is under a misconception. Firstly, Imaam Abu Hanifah does not permit any contract which is haraam or which constitutes I’aanat alal Ma’siyat. His ruling of validity is not to be misconstrued to mean permissibility. It is grossly irresponsible to entertain the idea that such a great Imaam whose lofty status of Taqwa is unmatched, would ever promote or condone a contract which constitutes I’aanat alal Ma’siyat. But, in Fiqah, sometimes terms such as jawaaz and saheeh mean valid, just as three Talaaqs in a single statements are valid but sinful. Thus, Imaam Abu Hanifah’s view of an Aqd based on I’aanat alal Ma’siyat being valid, is based on rational grounds. Despite the sin, the consequence of such an Aqd will be that the rental remains halaal. Again we remind that this is not the Fatwa of the Hanafi Math-hab. Secondly, while the lawyer has attempted to argue away the real and sharp difference between Imaam Abu Hanifah and Saahibain, he has failed to produce evidence for his view. The fact of the existence of this Ikhtilaaf is irrefutable, and it applies to the “first situation”, not to the “second situation” in which there is no Ikhtilaaf.
(10) The contention of the lawyer in his point No.4 is incorrect concerning his statement: “….is null and void, with the result that the rental is impermissible, by consensus of jurists across the board in all schools.” According to Imaam Abu Hanifah, despite the sin factor and impermissibility, the contract is not null and void. It is faasid (corrupt and sinful). Yes, according to the other three Math-habs and Saahibain the contract is baatil, and this is the view we all accept as the official stance of the Hanafi Math-hab. We are Hanafis and strictly follow the Fuqaha of our Math-hab. For purposes of issuing fatwa we do not refer to Al- Mughni which is a Hambali kitaab, nor to the kutub of the other Mathaa-hib, nor do we attach paramount importance to Allaamah Shaukaani’s Nailul Autaar or to Maaliki kutub such as Mawaahibul Jaleel Lil Khattaab mentioned by the lawyer sahib. The mas’alah of Ijaarah is adequately dealt with by the Hanafi Fuqaha. There is nothing unsolved in this issue to necessitate the acquisition of assistance from the kutub of the other Math-habs.