Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir
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To: Abdul Jamil Qame'
Question:
Assalamu Alaikum...
Our eminent Sheikh, we have a transaction in Afghanistan whose validity we are unsure of, yet it is very common. Its form is: a poor person takes a calf aged one year or ten months and raises it for a year or two. If it is female and becomes pregnant and gives birth, the raiser takes its offspring and its milk, and returns the cow to its owner, or they sell it and split the proceeds equally before it gives birth. If it is a male, they sell it and split the proceeds, or they keep it and share its benefits equally. The first form is called Duwayani and the second form is called Nisafgi. Is this contract invalid (fasid) or valid (sahih)?
May Allah reward you with goodness.
Answer:
Walaikum Assalam wa Rahmatullahi wa Barakatuh,
Among the conditions of Ijarah (hiring/leasing) in Islam is that the wage, when mentioned, must be known (ma’lum) and not unknown (majhul). It is stated in the book, The Economic System, in the chapter "The Wage of the Worker" (page 91 of the Arabic edition):
"...It is a condition that the payment for the hiring be known by sight or by a description that eliminates ambiguity (jahalah), because the Prophet (saw) said: 'If any of you hires a worker, let him inform him of his wage.' It is permissible for the compensation of hiring to be in cash, or other than cash, or property, or a benefit. Everything that is permitted to be a price (thaman) is permitted to be a compensation, on the condition that it is known. However, if it is unknown, it is not valid. Thus, if someone hires a harvester for an unknown portion of the crop, it is not valid due to ambiguity, unlike if he hired him for one sa’ or one mudd, which would be valid. It is also permissible to hire a worker for his food and clothing, or to provide a wage along with his food and clothing. This is because it is permissible for a wet nurse; Allah (swt) says:
وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ
“Upon the father is the mothers' provision and their clothing according to what is acceptable.” (Surah Al-Baqarah [2]: 233)
So He (swt) made the provision and clothing for them in exchange for breastfeeding. Since it is permissible for a wet nurse, it is permissible for others, because it is all Ijarah; this is one of the issues of Ijarah..."
The conclusion is that the wage must be known when it is mentioned, with knowledge that eliminates ambiguity, so that it can be fulfilled without dispute. This is because the basis of all contracts is to eliminate disputes among people. Therefore, it is stipulated that the wage be known due to his (saw) saying:
إِذَا اسْتَأْجَرَ أَحَدُكُمْ أَجِيراً فَلْيُعْلِمْهُ أَجْرَهُ
“If any of you hires a worker, let him inform him of his wage.” (Narrated by Ad-Daraqutni from Ibn Mas'ud)
And as narrated by Ahmad from Abu Sa’id that the Prophet (saw):
نَهَى عَنِ اسْتِئْجَارِ الأَجِيرِ حَتَّى يُتَبَيَّنَ لَهُ أَجْرُهُ
“Forbade hiring a worker until his wage is made clear to him.”
However, if the wage was not known, the hiring contract is still concluded and is valid, and in case of a dispute over its amount, one refers to the "wage of the like" (ajr al-mithl)... The entire subject is mentioned in The Economic System in the chapter on Ijarah, and more details can be found there.
In light of this, your question, as I have understood it, is as follows:
The raiser who takes a calf aged ten months or a year, then raises it and cares for it for a year or two, and his wage is:
** If the calf he took is female and he cared for it until it became a cow, then in this case:
a- If it gives birth during the rearing period, the raiser's wage is the offspring and its milk, and then he returns the cow to its owner...
b- Or he takes half the price of the cow when sold before giving birth as his wage, in exchange for that period of rearing.
** If the calf he took to raise and care for is a male, then his wage after raising it for a year or two is:
c- They sell it and the price is split equally between them.
d- Or they keep it and share its benefits equally between them.
If my understanding as stated above is correct, then the Shariah ruling in this case depends on the wage being known and not unknown, and that the duration of care and rearing must also be specified and known. The answer is as follows:
Item "a": This contract is not permissible because the wage is what the female carries (the offspring), and this is unknown (majhul)...
Item "b": The wage is known because it is half the price of the cow when sold at an agreed-upon time, so it is permissible.
Item "c": The wage is half the price of the calf when sold at an agreed-upon time, and this is permissible.
Item "d": The benefits that are to be split equally must be specified so they are clearly known for it to be permissible. If they are not known, it is not permissible.
Your brother, Ata Bin Khalil Abu Al-Rashtah
03 Jumada al-Thani 1438 AH Corresponding to 02/03/2017 CE
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