1) Definition
a) Literal Definition
Ijaarah is derived from the root word ‘Ujrah’ which means to reward.
b) Shar’ee Definition
Ijaarah is a transaction on benefits in exchange of something’ (Qudoori)
2) Sources
a. Qur’aan
“And said one of them (the two women), ‘O my father! Hire him! Verily the best of men for you to hire is the strong and trustworthy. He said, 7 intend to wed one of these two daughters of mine to you, on condition that you serve me for eight years; but if you complete ten years, it will be (a favour) from you. But I intend not to place you under a difficulty. If Allah wills, you will find me one of the righteous. ‘ He (Musa) said, That (is settled) between m3 and you: whichever of the two terms I fulfil, there will be no injustice to me, and Allah is Surety over what we say. ‘ (Qasas 27 – 27)
Shuayb (Alayhis salaam) hired Moosa (Alayhis salaam) for a period of eight years.
b. Hadith
‘Rasulullah (Sallallaahu Alayhi Wasallam) gave permission to do Ijaarah and said there is nothing wrong in it.’ (Mishkaat)
‘Rasulullah (Sallallaahu Alayhi Wasallam) did cupping and gave the Hajjaam (person who conducted the cupping) his fees.’ (Mishkaat)
3) The Need for Ijaarah
Ijaarah is a basic necessity of human life. If a person wants to build a house, he may have the necessary money on hand, he may own the land. But he will require the services of an architect, builder and workers to build the house. A man may own fabric, but he will require the services of a tailor to sew his clothes. Many times it is difficult for a person to wash his own clothes because of time or because the fabric needs special care so he has to use the services of a laundry. When a person is on a journey, he has to rent a room in a hotel. Or requires to travel somewhere, he has to hire a vehicle.
4) Role Players
1) Ajir – worker, employee
2) Musta’jir or Ajir – employer
3) Ujrat – remuneration
4) Ujrat Mithli – A fair wage (generally determined by an impartial third party generally, the government)
5) Ma’jur – The item that is hired or rented
6) Ujrat-e-Musamma – the fixed fee that is agreed upon between the Ajir and the Musta’jir, i.e. the wage or payment agreed between the employee and employer.
For example, Zayd employs Umar to work in his shop for R1000/month. Zayd is the Musta’jir, Umar is the Ajir and R1000 is the Ujrat Musamma.
Procedure of Contract
Proposal and Acceptance
Conditions
Generally, in Fiqh the Fuqahaa discuss the Ahliyyah (qualifications) to carry out any particular act and generally, there are four qualifications: a) Muslim, b) Free, c) Sane, d) Adult
In Ijaarah, the only condition of qualification is to be sane. That means an insane person cannot be a Mujir or Musta’jir. Being a Muslim is not necessary. The Mujir or Musta’jir or one of the two may be a non-Muslim. To be a free person is also not necessary. A slave who is granted permission from his master may be a Mujir or Musta’jir. To be an adult is also not necessary. A minor who has reached an understandable age may be a Mujir or Musta’jir in a matter that is of benefit to him/her, for example, accepting a gift, etc. If there is a possibility of loss, for example, buying, selling, hiring, etc. then he/she may be Mujir or Musta’jir only with the permission of his guardian.
General Principles
a) Everything must be specified in order to avoid a dispute. Therefore, wages must be fixed and specified, that is to say, so much per day or so much per month. It is not valid to say that a suitable wage will be paid. If someone is employed without fixing his salary or wage, then the agreement is invalid, and he will have to be paid Ujrat Mithli. However, if the rate for some work is fixed, then agreement can be made without specifying the wage. However, difference of place will be taken into account. The same rate will not be paid in a small town as in a big city, nor will the same amount be paid in a big city as in a small town.
b) The nature, place and times of work must be specified. The person being employed must be told the kind of work he will be required to do, where he will work and the time he will have to work, or the amount of work he will have to do and then his wage should be agreed. For example, if you employ a worker you have to tell him that you will be paid so much. Eash day you will have to do so much work, and you will be working in this factory or in this place, and it will be in a cloth mill or a shoe factory, because the place and type of work makes a difference to the wages.
c) Wages may also be fixed on the basis of the amount of work to be done. So much work for so much pay, as is generally done in contract work. But if the work is excessive in relation to the payment, or is too hard, then the same amount will have to be paid as is generally paid for that much work. This is called Ujrat Mithli. A worker can also be employed on a monthly salary basis, but it is necessary that the place and nature of the work be specified. If any of these conditions are not met, then the agreement will be invalid. And in the event of cancellation of the agreement, the worker will have to be paid for as many days as he has worked.
6) Types of Manaafi’e (Benefits)
‘Manaafi’e (benefits) are sometimes known according to the time like hiring a house for one year or land for farming. The transaction is correct if the time period is specified and whatever the time period may be. And at times it is known according to the job done like hiring a person who dyes clothes or sew clothes or hiring an animal to carry a specific load.’ (Quduri)
To summarise, Manaafi’e (benefits) are of two types:
a) Item, for example, hiring a house or transport or machinery
b) Person – this is categorised into two a. Ajir-e-Khaas b. Ajir-e-Mushtarak
Ajir-e-Khaas
Khaas means specific. Contextually, it refers to an employee whose service is confined to only one person, for example, a teacher, labourer, domestic servant, etc.
1. Position – An Ajir-e-Khaas is an Amin (entrusted person) without Zamaanat, i.e. trustee without liability. A trustee has to take full care of the thing that he is entrusted with, but if by chance that thing is lost or damaged, he will not be liable for compensation, but if he deliberately damages it, then he will be liable. In the same way, every worker and employee is a trustee of his employer’s property, i.e. the things that he uses or is put in charge of, and of the work he has been given to do. So, if by chance or because of some difficulty he falls short in his work, or by chance the things that he is using or are in his charge break down, or get damaged, then he will not be held responsible.
2. If on any day, the employer does not give his employee any work to do, then does he have to pay him for that? In this, there are two possibilities: One is that he is keeping him on the basis of a monthly or weekly wage, and the employee reported for work but was not given any work to do. In this case, he has to be paid for his time, as well as for his day off. But if is kept on a daily wage basis then he will have to be paid for the days on which he works, and not for the days on which he is not given work.
3. The employer must pay his employees on the day that is fixed for paying their wages. If by chance, one day or one month there is a delay, then this is acceptable. But if he delays habitually, then this is both a moral and a legal offence. To delay a worker’s payment is extremely serious. Nabi (Sallallaahu Alayhi Wasallam) has said that a worker should be paid before his sweat has dried.
4. If workers are being paid less than the Ujrat Mithli, then do they have the right to go on strike? This is a question to whbh the Ulama need to give serious attention. According to some Ulama, it is permissible. This opinion is based on two factors; According to the majority of Aimmah, viz. Imaam Maaliki, Imaam Shaaf’ee and Imaam Hanbaliy (RA), if an employee (Ajir-e-Mushtarak) is not given his pay, then he has the right to hold back the owner’s property that is in his possession. Secondly, in accordance with the statement of Imaam Abu Hanifa himself, at least factory workers should be included in the category of those workers whose work has an effect on things they work on, for example, a tailor,
Ajir-e-Mushtarak
Mushtarak means joint. Contextually, it refers to an employee whose services is not confined to one person only, but serves many people at one time, for example, a lawyer, taxi driver, tailor, etc.
1. Position: An Ajir-e-Mushtarak is an Ameen (entrusted person) with Zamaanat (liability). If any item in his custody gets lost or destroyed, he will be responsible.
2. An Ajir-e-Mushtarak is entitled to his payment once his work has been completed. Before the work is finished, he is not entitled to payment. For example, someone gives a watch for repair, or a tailor clothes to sew. Then, until the work is completed, the Ajir does not legally have the right to ask for payment. The person giving the order may give some amount if he wishes. However, if urgent work is wanted, or material has to be purchased, then some payment can be demanded in advance.
3. Payment – If any person works on a monthly basis, then he may not ask for his salary before the end of the month.
4. Time limit – If a Ajir Mushtarak specifies a time by which he will have the work completed, then he is not obliged to bind himself to this time because legally he is bound on the basis of work and not time. However, morally he should not break his promise. But if he has taken extra payment in return for doing the work quickly, then he is obliged to complete the work on time.
5. Withhold – Until such time as an Ajir Mushtarak has been paid, he is entitled to keep back the article that is with him. If during the time he is keeping it back it becomes damaged, or is lost then he is not responsible for it, because it is the Musta’jir or customer’s mistake that he did not come and pay, and the Ajir was compelled to resort to keeping back his goods. This is the view of Imaam Maalik (RA) and the other two Imaams. But the view of Imaam Abu Hanifa (RA) distinguishes between two categories. One is that work which changes the material or goods that are with him – for example, a tailor who cuts and sews cloth and sews the material, or a dyer who alters the colour of cloth. The tailor and dyer have the right to hold back the clients items until the customer pays.
Termination
a) Once an employer and employee have entered into a wage agreement, then neither party has the right to cancel it unless either party is confronted with some constraint or legitimate objection which excuses the employer from taking the work or the employee from doing the work. Thus, the author of ‘Hidaaya’ has written, ‘Wage agreements can be cancelled on the basis of legitimate objections or excuses/
b) Legitimate objection does not mean that whenever they want, workers can put forward arguments and excuses and go on strike, or that whenever they want, employers and factory owners can close down their factory or plant and put their workers out of work. In Hidaaya, legitimate action is defined in this way, The meaning of Udhr (legitimate objection) is that to fulfil his agreement, the person making the agreement will have to bear a loss, or some harm that is completely against the spirit in which the agreement was entered into.’ And in Majallah, Is ome objection arises that prevents the realisation of the motive for which the agreement was undertaken, then it becomes invalid/
c) Now as to how this cancellation is effected, there is some difference of opinion. The author of ‘Hidaaya’ has written that it cannot be done without recourse to court. And in the opinion of other Imaams, it can be done without recourse to court. And between these two, some Imaams have created a middle way that if the objection is clearly evident and can be seen by anyone, then there is no need for recourse to court. But if the objection is not obvious but can only be understood by the employer or the employee, then the agreement cannot be cancelled without recourse to court.
For example, if a factory is destroyed by a fire or some natural disaster, then the owner can lay off his workers without having to take the matter to the government, and can answer his workers directly. But if he foresees or is experiencing decline in the price for his product, then he will have to put the matter to the government before he can cancel his agreements with his workers.
d) Similarly, if a worker becomes sick or is involved in an accident which makes him unable to work, then he can leave his work without any court decision. But if he wants to move from one place to another, or to take a new job, or if he is not happy about his wages, or the amount of work he has to do, he may not take any illegal action or go on strike. However, it is advisable to get his employer to agree to the cancellation of his agreement. And if he is not prepared to do so, then he should take his requests and objections to the government, so that they may make an appropriate decision.
e) Taking the matter to court or to the government does not mean bringing a lawsuit and sifting the dust of the courtroom for months on end. There should be an independent body established to look after the rights of employers and employees in the whole country, and to resolves their disputes within a few hours of a few days. Today, such bodies are established, but they take so long to come to a decision that justice itself becomes injustice.
Conclusion
I) The discussion is based on the broad principles of Ijaarah. We have not discussed the Juziyyaat (branches) flowing from the broad principles.
2) We have limited the discussion on Shar’ee issues and did not engage in the secular aspects of Ijaarah as we need to study the secular issues before issuing Shar’ee rulings on them.
and Allah Ta’ala Knows Best
