Is a lease contract valid if the starting time for a journey is unspecified?

General Chapter

Al-Mughni

Book of Leasing

Book 25 · Issue 1 · Bab 1

Open in Qurani

Primary text

A lease contract (Ijtira') for something like a tent (*fustat*) to Mecca is invalid if the starting time of the departure is not specified. This ruling is held by Abu Thawr and is analogous to the position of Al-Shafi'i. The basis for invalidity is that the duration has an undetermined commencement, which is impermissible, similar to leasing a house from the time the pilgrims depart until the end of the year. Arguments suggesting validity are considered contrary to textual evidence.

Supporting text

The Hanafi school (As'hab Al-Ra'y) permits such a lease based on the principle of Istihsan (juridical preference), despite it contradicting the standard analogy (Qiyas).