What is the liability of the lessee if the lessor measured the load and the lessee placed it on the animal, yet the lessor was aware of the measurement?
General Chapter
Al-Mughni
Book of Leasing
Primary text
If the lessee measured the load and the lessor loaded it onto the beast, and the lessor knew the measurement, the lessee does not guarantee the animal if it perishes, because the lessee acted without deception or fraud. Regarding the wages for the excess measure, two views exist: first, that the lessee owes no extra wage because the lessee did not contractually agree to pay for it. Second, that the lessee owes the wage for the excess because both parties agreed to the carriage under a contract of lease (Ijarah), treating it like a transfer of possession without stating a price (Mu'atah) in a sale, or entering a bathhouse without fixing the price.
Supporting text
The Shafi'is, according to one opinion, hold that if the lessee measured and the lessor loaded, the lessee is not liable because the lessor was negligent in carrying it. The primary view holds the lessee liable because the deception originated with the lessee, as they informed the lessor of a measurement different from the reality, thus incurring liability, similar to ordering a third party to load it.