What is the ruling when an item leased by description in the debtor's liability (Dhimma) perishes before delivery?
General Chapter
Al-Mughni
Book of Leasing
Primary text
If the Ijara is for a specific item described but defined in the liability (not a specific identified object), the previous rulings are reversed. If the lessor delivers an item that subsequently perishes, the Ijara is not annulled, and the lessor is obligated to provide a replacement. Similarly, if the item delivered is found to be usurped (Ghasb) or if it is returned due to a defect, the contract remains valid, and the lessor must provide a substitute. This is because the object of the contract is the usufruct (benefit), not the specific physical item itself; the delivered item is merely a fulfillment, and its perishing, usurpation, or return due to defect does not void the contract, similar to buying a specified item with a price defined in the liability.
Supporting text
The principle that when hiring a camel, one may use someone similar for riding, or when leasing land for a specific crop, one may plant something similar or less detrimental, seemingly contradicts the inability to replace a specifically hired camel. The distinction is that the core of the contract is the usufruct of the specific item; thus, one cannot substitute the underlying subject matter of the benefit itself, unlike the rider or the seed, whose identity is conditional upon defining and quantifying the usufruct, not the object of the contract itself.