To whom does the right to the benefit (usufruct) return if a non-owner lessee returns the leased item due to a defect?
General Chapter
Al-Mughni
Book of Leasing
Primary text
The benefit should revert to the seller. This is because the seller is entitled to the compensation (rent) from the lessee. If this compensation is nullified, the object of the compensation (the benefit) returns to the seller. Furthermore, the buyer possesses the object burdened by the lease for the duration, so the benefit does not return to the buyer unless the buyer subsequently gains possession of it.
Supporting text
Some Shafi'i scholars hold that the benefit returns to the buyer because the benefit is subsidiary to the ownership (raqabah). They analogize this to a situation where a man buys a wife who is already married; if the husband divorces her, the right returns to the buyer. This analogy is invalid because the compensation for the benefit of intimacy (bud'ah) is established for the seller simply by the consummation of the marriage, and the compensation is not apportioned over time. In contrast, the lessor is entitled to the rent in exchange for the benefit apportioned over its duration; thus, if the entitlement to the future benefit ceases due to nullification, the object of the entitlement—the benefit—returns to the original possessor of the right to compensation.