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Problem # 12 An agent becomes entitled to the Ja’l by the surrender of the subject of Ju’alah. So if the return of the animal to its owner has been made the condition for the Ja’l, and a person brings it to the town, but it escapes, he shall not be entitled to anything. If, however, the Ja’l has been made payable by simply bringing it to the town, (and a person brings the animal to the town, but it escapes), he shall be entitled to the Ja’l. So also, if the Ja’l was made payable by simply leading to it, he shall be entitled to it, even if he has not brought it anywhere.
Problem # 13 If a person says: “Whoever returns, for example, my animal shall have so much,” and a group of persons return it, they shall all share the Ja’l equally, provided that they have had an equal share in the act (of searching for the animal). Otherwise, it shall be divided among them proportionately.
Problem # 14 If a person specifies a Ja’l to give to another for building a wall or stitching a garment, and a third person also shares in that job, the Ja’l specified for that job in lieu of the job of the third person shall drop, and if their cor to the job does not differ, he shall get half of it; otherwise, he shall receive it proportionately. As regards the other, he shall not be entitled to anything.
Of course, if it has not been stipulated that he should perform it personally, and what is intended is the performance of the job without any such condition, even if it is performed by the participation of a third person, and the participation of the third person with him was intended to be without any payment and for sake of just helping him, the person with whom Juá’lah has been entered shall receive the entire Ja’l.
Problem # 15 (Cancellation of) Juä’lah is permissible for both the parties to it, even after the person hired to do the job has been engaged in that job and has started it, so that he may stop its performance, in the same way as the hirer is entitled to rescind the Ju’ãlah and cancel his commitment, If it were before the hireling is engaged in the job, he shall not be entitled to anything. If it was after it, and it is the hireling who withdraws, he shall not be entitled to anything. If, however, it is the hirer who withdraws, the hireling shall be entitled to his proper wages for the job.
There is likelihood of some difference in the first case. This is when the withdrawal is made by the hirer at a time when the person hired, suppose, for stitching a garment or building a wall, or the like, is engaged in the job and has already performed part of it, or the job may relate to returning a lost thing, which requires engagement in some external preliminaries, the hireling shall be entitled to the proportion he has already performed in the first case, contrary to the second case, where he shall not be entitled to anything.
This is the case when the Ja’l is not contingent to the completion of the job like stitching a garment or building a wall; otherwise, the rule similar to the return of a lost thing shall apply. There is likelihood of difference between the two cases. If the hirer rescinds the contract, then it is said that the hireling shall be entitled to the specified wages proportionately in the first case, while he shall be entitled to proper wages in the second. If the job is like stitching a garment or building a wall, and he has performed part of the job, and then the hirer withdraws the contract, the hireling shall be entitled to the specified wages proportionately. If it were like returning a lost thing, or, if it were contingent on the completion of the job, he shall be entitled to proper wages.
The problem has some difficulty, and so caution must not be given up in any case by settling the matter by mutual consent and compromise.
Problem # 16 As regards our statement that the hireling shall be at liberty to withdraw from his job in any case, even after he is engaged in his work, it is allowed in the event it is not detrimental to the hirer; otherwise, once he has started the job, he shall be bound to complete it.
For example, if the Ju’alah relates to operation of the eye or any of the operations prevalent among the medical doctors of this time, he shall not be allowed to withdraw once he is engaged in the job and has started it, as the interest of the patient and his treatment depends on its completion, while if it is left incomplete, it shall be harmful for the patient.
If he withdraws, he shall not be entitled to anything in such case in proportion to the part he has performed, as the payment of Ja’l in such case is made subject to the completion of the job.
If it is supposed to be similar to the case of stitching a garment, then apparently he would be entitled to proper wages in proportion to the part of the job he has already performed, but he shall also be liable to indemnify the loss sustained by the patient due to his withdrawal.
‘Ariyah means giving possession of something to another in order that he may utilise it gratis, or it means the contract of which it is a consequence, or its consequence is donation of the utilization. It is one of the contracts that require Declaration to be made by whatever words conveying its meanings in the prevalent usage, as when one says: “I have donated it to you”, or “I have given you permission to utilise it,” or “Utilise it,” or “Take it to utilise it”, or the like.
It also requires Acceptance, meaning whatever signifies consent. It may be in the form of an act, by taking it after Declaration by the donor in this sense.
Apparently it may also take place by way of Mu’at as when a person gives another a shirt to wear, and he takes it to wear, or he gives another a utensil or bed for his use, and he uses it.
Problem # 1 It is a condition in the donor that he must be the owner of the utilization (of the thing donated), and should have the capability of making changes in it. So it is not lawful for a usurper to donate a property or its utilization.
There is a strong opinion in the application of the donation by an unauthorized person (to be invalid) until it is validated by the consent of its owner.
So also a donation by a minor, a lunatic or a person interdicted due to idiocy or insolvency is not valid except with the permission of his guardian or the creditors. The likelihood of validity of a donation by a minor with the permission of his guardian is not devoid of force.
Problem # 2 It is not a condition for the donor to be an owner of the property, and it is sufficient that he should be owner of its utilization by lease or being the legatee in a legacy.
Of course, if it is stipulated in the contract of lease that the lessee should utilise it personally, the lessee shall not be allowed to donate its utilization to some one else.
Problem # 3 The donee must have the capability to utilise the property (whose utilization has been donated by the donor). So it is not allowed for an infidel to accept the donation of the utilization of the holy Quran, or acceptance of a prey for one who has tied irrespective of its having been donated by one who has tied Ihram or one who has not tied it.
Likewise, it is a condition to specify the thing utilization of which is donated. So if one says: I have donated the utilization of one these two things, or one of those things, it would not be valid.
It is not a condition that the donee be a single person, as donation of the utilization may be made to a group as well, as when one says; “I have donated the utilization of this book or utensil to those ten persons, so that they may utilise it turn by turn or by casting lots as in case of a leased property”. According to the stronger opinion, it is not allowed to donate the utilization of a thing to an unlimited group.
Problem # 4 It is a condition in the thing whose utilization is donated that its lawful utilization may be possible with the subsistence of the property itself, such as real estates, beasts of burden, garments, books, commodities, or the like, rather even a male animal for copulation, a cat, a dog for hunting or guarding, or the like.
It is not allowed to donate the utilization of things that have no lawful utilization, as equipments for entertainment, or utensils made of gold or silver for using them for a unlawful purposes, or what cannot be used except by consumption, as bread, oil, drinks and such other things for drinking and eating.
Problem # 5 The permissibility of donation of a goat for utilization of its milk or a well for getting water from it is not devoid of justification and force.
Problem # 7 If a property subject to donation of its utilization is exclusive as regards its special utilization, as a bed for bedding, a quilt for covering or a tent for shelter, or such other things, it is not necessary to explain their use at the time of donating them for utilization, even if they may have several uses, as a land that can be used for farming, plantation and building, or a beast of burden can be used for loading, riding, or the like. If however, the donation is meant for a special utilization or utilizations, it is necessary to mention it, and in that case its utilization is confined exclusively to those special purposes for which it has been donated. If, however, it is meant for a general use, then it is allowed to generalize it and explain it generally. It is also allowed to leave the purpose unspecified, as when one says: “I have donated for utilization this beast of burden to you”. In such case, it may be brought into any lawful utilization.
Of course, some of the utilizations are made in secret, and are not included in the general utilizations, and they are required to be mentioned as such expressly or in a way that they may be generalized, and they are like burial, which, though included in the utilizations of land, but it is not included in the general utilizations, (and so it must be mentioned expressly).
Problem # 8 (The cancellation of) a donation for utilization is allowed by both the parties. So the donor may withdraw whenever he likes, and the donee may, likewise, reject it. Of course, in a particular case of donation of land for burial, it is not allowed to withdraw after throwing earth on the dead body, or, according to the more cautious opinion, after digging the grave. But before that it is allowed to withdraw, even after placing the dead body in the grave before throwing earth on the dead body. If the donor withdraws after it, he shall not be liable to pay the wages for digging the grave and its expenses, in the same way as the Wali of the deceased shall also not be obliged to fill the pit dug with the permission of the donor.
Problem # 9 A donation for utilization stands cancelled by the death of the donor; rather, even by his loss of control due to insanity, or the like.
Problem # 10 It is obligatory on the donee to confine the utilization to the type of utilization specified by the donor. He is not allowed to transgress it to any other utilization, even if it were insignificant and small in harming the donor. Similarly, it is obligatory on the donee to confine the utilization to the nature of the utilization as per usual practice. So if a person hires a beast of burden, he should not load it more than what is usual practice as regards the animal and the load, the time and place. If he contravenes the usual practice in nature and manner, he shall be deemed to be a usurper and shall be liable for it. He shall be liable to pay to the donor the wages he has earned due to transgression if he has contravened regarding the nature of utilization. But if he has contravened in the manner of utilization, it is not far from being liable to pay the wages for the excess.
Problem #11 If a person has donated land building or plantation, he shall be allowed to retract, and shall be entitled to demand the donee to uproot the plants, but he shall be liable to pay compensation. The same rule shall apply if he has donated the land for farming, if he withdraws before the crop is ripe. It is likely that the donor shall not be entitled to demand the donee to uproot the farm, if the donee is ready to pay compensation for its retention. There is likelihood of compelling the donee without payment of compensation. The problem with its branches is very difficult to decide. So caution must not be given up by reaching mutual agreement and compromise.
Similar is the case when a person allows another to fix his beams in his roof, but withdraws after he has already fixed them in the building.
Problem # 12 The property donated for utilization by the donor is a trust in the hands of the donee, he is not responsible if it is destroyed except by his commission or omission. Of course, if liability is stipulated (in the contract), he shall be held responsible, even if it is not due to his commission or omission, in the same way as when the property donated was gold or silver, the donee shall be responsible in all circumstances, except when the elimination of liability is stipulated in the contract.
Problem # 13 The donee is not allowed to donate it to another for utilization or lease it to another without the permission of the owner. In such case his donation shall be deemed to be a donation by the owner, and the donee shall be considered to be a representative and deputy of the owner. If the donor subsequently lost the capability of donation, as due to insanity, the latter donation shall remain intact.
Problem # 14 If the property donated is destroyed by some act of the donee, if it were as a result of some authorized act without any transgression from the usual practice, he shall not be held responsible for it. If it were due to some other reason, he shall be held responsible.
Problem # 15 The donee is released of the liability if he returns the property donated to him to the donor or his representative or Waif If he returns it to its guard where formerly it was without handing it over to the owner or without his permission, he shall not be released from the liability, as a person returns a beast of burden to a stable and fastens it there without the permission of its owner, and then it is lost, or someone causes its loss.
Problem # 16If a person receives donation from a usurper, then if he has no knowledge about its being usurped, the liability for it shall go to the usurper. If the object donated is destroyed while in possession of the donee or not white it was in his possession, then the owner shall have recourse against the usurper as well as the donee for the compensation of the loss of his property. So if he has recourse against the donee, the latter shall have recourse against the usurper. But if the owner has recourse against the usurper, the latter shall not have recourse against the donee.
The same rule applies to the compensation for the profit etc. accrued to the donee of which the owner has been deprived during the donee’s possession of the property. If the owner has recourse against the donee, the latter shall have recourse against the usurper, but not vice versa. If, however, the donee knew about the usurpation, the donee shall not be entitled to have recourse against the usurper when the owner has recourse against him. Rather, the case shall be otherwise, so that the usurper shall have recourse against the donee if the owner has recourse against him when the property is lost while in the donee’s possession. The donee is not allowed to return the property to the usurper once he comes to know about the usurpation. Rather he shall be obliged to return it to its owner.
A Wadi’ah or Deposit is the contract effective in appointing another as one’s deputy or representative for protection (of something. handed over to him)’ or it is the appointment as deputy for the said purpose, or, in other words, it means placing some property with another so that he may protect it on behalf of its owner, and mostly it is applied to the property deposited. The owner of the property is called Mudi’ or the Depositor, while the other person is called Wad’i or Mustowdi’ or the Trustee.
It requires Declaration, in whatever words conveying the sense of appointing another as one’s deputy or representative, as one may say: “I have entrusted you this property”, “Protect it”, “It is a trust with you”, or the like. It also requires Acceptance leading to consent for deputyship or representation in protection. It is not a condition to express Declaration or Acceptance in Arabic language, and they may be expressed in any language.
The Declaration is allowed to be in words and Acceptance to be expressed by deed, so that after the Declaration the other party receives the property.
It is also valid if executed by way of Mu’ãtãt, one party entrusts a property to another, and the other party receives it.
Problem # 1 If a person throws, suppose, a garment to another and says: “It is a trust with you”. Then if he accepts it in words or by deed denoting Acceptance, it shall constitute a Wadi’ah. There is hesitation in its execution by silence leading to consent.
If the other party does not accept it, it shall not be a Wadi’ah, even in case a person throws something before another for this purpose, and goes away, and leaves the thing with the latter, so that the other party shall not be responsible for it, though it is more cautious to act to protect it, if possible.
Problem # 2 Acceptance of a Wadi’ah is allowed for a person who is capable of protecting it. If, however, a person is not capable, he is not allowed to accept it, according to the more cautious opinion, except when the owner of the property is unable to protect it and there is no one else capable to do so to whom it could be entrusted. It is far from being permissible particularly in case the depositor is himself aware of the person’s incapability to protect it.
Problem # 3 (Cancellation of) Wadi’ah is allowed by (either of) the two parties to it. So the owner of the property is entitled to get back his property whenever he likes. Similarly, a trustee is entitled to return it to the owner, and the latter shall not be entitled to refuse it. If the trustee revokes it by himself, it shall stand revoked, and the trust of ownership shall drop, and it shall become a trust according to Shari’ah. So the trustee shall be bound to return it to its owner, or one who stands in his place, or announce its revocation. If he dilly-dallies it without any legal or rational excuse, he shall be held responsible for it.
Problem # 4 It is a condition in such contract that both the parties to it must have majority and sanity, so that it is not valid for a minor or a lunatic to receive or deposit anything as a Wadi’ah , without any difference whether the property belongs to themselves or some one else from among the adult persons. Rather it is not allowed to receive anything deposited by them, so that if a person receives anything from them as a Wadrah, he shall be held responsible for it, and he shall not be released of its liability if he returns it to them. However, he shall be absolved of the responsibility if he returns it to their guardian.
There is no objection in receiving it, if there is fear of its being destroyed or lost if it remains in their possession. So it shall be received as something to be guarded and protected, but it shall not thereby become a Wadi’ah or an ownership in trust. Rather it shall be a legal trust that he shall be obliged to protect and take necessary action to see that it reaches their guardian, or he must inform the guardian that the thing is in his possession. But he shall not be held responsible if it lost while in his possession.
Problem # 6 If a person deposits anything with a minor or a lunatic, they shall not be held responsible in the event of its loss, rather even if they destroy it, when they happen to be indiscreet. If they happen to be discreet, and capable of being entrusted, it shall not be far from likely to hold them responsible for the loss if it takes place due to their failure in its protection, not to speak of the case when they themselves have destroyed it.
Problem # 7 It is obligatory on a trustee to protect it in the manner according to the usual practice for its protection and keep in a safe place suitable for it, as a locked box for garments, Dirhams, jewellery and the like, a stable with a locked door for beasts of burden, and a similar pen for sheep. In short, he should guard them in a place that according to the usual practice, he may not be called responsible for wastage, immoderation and treachery, even in case when the depositor knows that he has no safe place for keeping the property entrusted to him.
After the acceptance of the responsibility of protecting the property, it is obligatory on him to make arrangement necessary for him for its protection. Similarly, it is obligatory on him to take all precautionary steps required for safeguarding it against blemish and loss, as in case of a silken or woollen garment he must spread it in the sun during summer, and in case of a beast of burden he must give it fodder and water and protect it against cold and heat. If he commits carelessness in such precautionary measures, he shall be held responsible.
Problem # 8 If the depositor has specified a particular place for keeping his property and it is understood that it is of a restrictive nature, the trustee shall confine himself to that particular place, and shall not be allowed to shift it to any other place once he has placed it there, even if it is safer. If he shifts it, he shall be held responsible (for any loss). If it was threatened with destruction or loss in that place, it shall be allowed to shift it to some safer place, and he shall be under no liability despite the restraint by the owner, by saying: “Do not shift it, even it is threatened with loss”, though in such case it is more cautious to refer to the judge (for his permission), if possible.
Problem # 9 lf the entrusted property is destroyed while in the possession of the trustee without his commission or omission, he shall not be held responsible for it. Similar is the case when it is forcibly snatched from him by an oppressor, regardless whether he has snatched it from his possession or has ordered him to give it to him and he gives it to him under compulsion. Of course, his liability shall be strengthened if he had caused it, even by informing him about it or displaying it at a place that is the place where there is the risk of the oppressor’s arrival. In such case, his possession may be changed into a liable possession, irrespective of whether the oppressor has reached there or not.
Problem # 10 If it is possible for the trustee to adopt some measures for the protection of the entrusted property from the oppressor, he shall be bound to adopt them, even if he is compelled to falsely deny its existence or swear it, he shall be allowed to do so, rather he shall be bound to do so. If he fails to do so, he shall be held responsible for it.
As regards the obligation of its concealment, if it is possible, there is hesitation in it, according to the more cautious opinion it is so, though according to the stronger opinion it is not so.
Problem # 11 If the defense of the property leads to his physical harm like wound, etc, or damage to his honour, or financial loss, he shall not be bound to defend it; rather, he shall not be allowed to do so except in the latter case, and in that event too in some cases. Of course, in case the discomfort is very significant that is mostly tolerated by the people, as when he uses a harsh language in conversation with him, if it is not considered to be a damage to his honour or his nobility of rank, though it may naturally be painful for him, then apparently he shall be bound to tolerate it.
Problem # 12 If it is possible to prevent the entrusted property from the oppressor by payment of some money belonging to himself or some other person. If it is possible by payment of a part of it, he shall be bound to do so. If he neglects it, and the oppressor succeeds in occupying it entirely, he shall be held responsible for the amount that could be paid to him instead of the entire one, so that if half of it could be paid to him, he shall be held responsible for half of it, and if he could be paid one-third, he shall be responsible for two-third of it, and so on.
Similar shall be the case when he has been entrusted with two properties of a single person, and one of the properties could be given to the oppressor, but due to his negligence the oppressor snatched both of them. If a single property could be given to the oppressor, the trustee shall be held responsible for the other. If he could be paid one of them without specification, the trustee shall be held responsible for the one having higher value. If safety from the oppressor depended on a compromise with him by payment of some of his own property, he shall not be bound to pay it voluntarily or gratis. If (he pays it) with the intention of having recourse to the owner for it, when it w possible to obtain his permission or one occupying his position, like the judge in case it was not possible to find him, he would be bound to do so. If he pays it without obtaining permission from the owner, he shall not be entitled to have recourse to him for it. If it was not possible to obtain permission from the owner, according to the more cautious opinion, he would be bound to pay it, and he shall be entitled to have recourse to the owner for it after having such intention.
Problem # 13 If what is entrusted to the trustee is a beast of burden, he shall be bound to give it water and fodder, even if the owner has not ordered him to do so, rather even if he has forbidden him, or he must return it to its owner or the one occupying his place. It is not necessary for the trustee to give water and fodder to it personally, nor to do so in its place. He may assign the job to some one else, and, likewise, he may also take it out from its place for the purpose of giving it water and fodder. If possible, he must arrange water and fodder in its place after the prevalent practice. If, for example, the route was risky, he shall not be allowed to take it out, in the same way as he is not allowed to assign the job to some one else, if it was not safe, except when accompanied by himself or another reliable person. In short, it is indispensable for him to adopt measures for its protection after the usual practice in a way that he may not be called to have committed omission or commission according to the prevalent practice.
This is with regard to giving it water and fodder only. As regards the expenditure on it, there is no objection if the owner has kept something itself or its cost, or has permitted to spend from his own money as a debt to him. In case otherwise, he is bound firstly to obtain permission from the owner or his agent. If it is not possible, he must refer the matter to the judge in order to obtain his order as he deems proper, even if he has to dispose of part of it to meet the expenses. If it is not possible for the judge, he shall spend on it out of his own money, and have some witnesses for it, according to the better and more cautious opinion, and have recourse to the owner when intended by him accordingly.
Problem # 14 A Wadi’ah is cancelled on the death of the depositor or the trustee or the lunacy of either of them. If it were the former, the entrusted property shall remain in possession of the trustee as a legal trust, and he shall be bound to return it immediately to the heirs of the depositor or his Wali or inform them about it. If he neglects without any legal excuse, he shall be held responsible for it.
Of course, if the delay was due to the lack of knowledge about the person who is claiming to be the heir of the deceased or whether the person who is known as the heir of the deceased is his sole heir, and he has delayed the return or informing them in order to make necessary inquiry and investigation about it, then he shall not be held responsible for it, according to the stronger opinion. If the deceased has several heirs, he shall entrust the property to all of them or to one who is their representative. If he entrusts it to some of them, he shall be held responsible for the shares of the rest.
If it was the trustee (who has died or has become lunatic), the property shall remain a legal trust in the hands of his heir or Wali, if, suppose, it is in their hands, and he shall be bound to return it to the depositor or his representative, or inform him immediately.
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