Hukm Ba'd al-Shurut al-Mustahadithat fi 'Aqd al-Ijarat al-Mu'asarah [Ruling on Some Newly-constituted Conditions of Contemporary Ijara (Leasing) Contract]

• Main Authors: Azli Fairuz, Laki, Mohd Borhanuddin, Zakaria
• Format: Article
• Language: English
• Published: 2019
• Subjects: BP Islam. Bahaism. Theosophy, etc
• Online Access: http://eprints.unisza.edu.my/6469/1/FH02-FKI-19-30222.pdf; http://eprints.unisza.edu.my/6469/; https://doi.org/10.37231/jimk.2019.20.3.386
• Institution: Universiti Sultan Zainal Abidin

This research studies a number of newly-constituted conditions of ijara (leasing) contract, which had not been jurisprudentially addressed and studied by the previous jurists, due to the recent emergence of the newly-constituted conditions and beyond the period of the previous Jurists. These conditions are referred to as newly-constituted conditions because the available jurisprudence sources and texts are devoid of detailed discussion on them. And some of these conditions could be found in the old contracts as well as in the new contracts of our era. Some observed issues in the newly-constituted conditions require close scrutiny of their harmonious extent and lack of violation of the existing shari‘ah texts. And in the view of the importance of having a verdict on the rulings surrounding these conditions, preventing them from deviating from the shari‘ah (legitimate) foundations, a number of contemporary application models have been selected and represented in the newly-constituted conditions. These are maintenance condition of the ijara and the lessor requirement that the lessee must maintain the leased property, thereby violating the ijara contract, which has been clearly stated, discussed and analyzed in the general shari‘ah provisions. The research employs analytical approach where the researcher analyses the shari‘ah texts related to the conditions, and compares the scholastic views therein. The research arrives at numerous results, the most prevalent of which are: if there is no forbidden defect in the conditions, such as ambiguity and lack of clear stipulation, there is no objection to the implementation of these conditions, for they are approved by the shari‘ah; if maintenance is of the type that depends on the fulfilment of benefit (profit), it should be borne by the owner of the leased property without reservation, and not the responsibility of the lessee. But if the maintenance does not rely on the fulfilment of benefit (profit), it may be mutually conditioned on either the lessor or the lessee if it is clearly stipulated and not ambiguous.