What is the ruling regarding the wage and liability if the lessor measures and the lessee loads the animal, knowing the actual measure?
General Chapter
Al-Mughni
Book of Leasing
Primary text
If the lessor measured the load and the lessee loaded it onto the animal knowing the measurement without ordering the lessor to load it, the lessee owes the wage for the excess measure. If the lessee ordered the loading, there are two views on whether wages are due, as this is analogous to the lessor loading it (since the order implies the lessee's action). If a third party loaded it by the order of one party, it is treated as if that ordering party loaded it. If the third party loaded it without either party's order, it is treated as if the measuring party loaded it subsequently.
Supporting text
Knowledge (of the true measure) is attributed to Al-Awza'i, Al-Shafi'i, and the Ashab al-Ra'y. Imam Malik holds that the rationale is understood and hopes it proves true. The primary proof against validity is that this constitutes a lease agreement for an unknown duration and unknown work, which is invalid, similar to hiring an animal for the unknown duration of a military campaign (Ghazwa). Furthermore, the duration of campaigns varies, and the work involved fluctuates, making estimation impossible based on campaign length.