What is the ruling regarding a lessee discovering a defect in a leased specific object (Ayn) unknown at the time of contract?
General Chapter
Al-Mughni
Book of Leasing
Primary text
The lessee has the right to rescind the contract upon discovering a defect in the specific leased object that was unknown to him previously, without known dispute. This opinion is held by Abu Thawr and the Ashab al-Ra'y (people of opinion). The rationale is that this constitutes a defect in the object of the contract, thereby establishing the option to rescind, similar to defects in sales of specific items. Defects justifying rescission include those that diminish the value of the usufruct, such as stumbling of the back when walking, lameness that causes one to fall behind a caravan, the animal being unfit due to carrying a load, being refractory (jamuh), biting (adud), and similar issues. For an animal, defects like poor eyesight, madness, leprosy, or vitiligo qualify. For a dwelling, a collapsing wall, danger of collapse, or the well water becoming scarce or changing such that drinking and ablution are prevented are considered defects.
Supporting text
If the defect arises after the contract is concluded, the lessee still retains the option to rescind because usufructs are taken incrementally, meaning the defect occurred before taking possession of the remaining usufruct. If the lessee accepts the item despite the defect and does not rescind, the full rent becomes due because the lessee accepted the imperfect item, analogous to accepting a defective sold good. If there is a dispute as to whether a specific issue constitutes a defect, recourse must be made to experts. If experts declare it is not a defect—such as the animal walking roughly or tiring the rider because it is rarely ridden—the lessee has no right to rescind.