Is replacement permissible for provisions diminished by usual consumption when the contract is silent regarding replacement terms?
General Chapter
Al-Mughni
Book of Leasing
Primary text
When the contract is silent (طلق العقد), replacement is permitted for provisions lost due to theft, dropping, or unusual consumption, and there is no dispute on this point. Even if the diminution is due to usual consumption, replacement is allowed because the entitlement is to a known measure, and the right to replace the diminished amount is established, akin to loss through theft.
Supporting text
A differing view suggests that replacement is not permitted when the loss is due to usual consumption in an unrestricted contract, arguing that custom dictates that provisions are not preserved completely throughout the journey, which is why the hire price (fare) for a person carrying provisions is less than the hire price for cargo. Imam Al-Shafi'i holds that by analogy (Qiyas), replacement should be permissible. However, the opinion that replacement is not allowed is also attributed to him or considered a valid position derived from custom.