Landlord Intends Lessee To Use Premises For Prohibited Purpose
1. In order to understand the position of Imam Abu Hanifah (ra) on the issue of leasing of premises for a prohibited activity, two different situations must be clearly distinguished: The first situation is where the landlord expressly authorizes the letting for a prohibited activity, and accordingly intends that the premises will be so used for a prohibited purpose. For example, the lease explicitly stipulates that the tenant shall use the premises for the sale of liquor/wine, or a conventional bank or insurer. In this case, all the jurists and mazaahib across the board are unanimous that the lease is null and void at inception, with the result that the stipulated rental income is impermissible. The reason for this is that the subject matter of the lease is a direct prohibition or direct sinful transgression, and accordingly contrary to the express prohibition enshrined in the Quranic verse: “Do not co-operate with one another in sin and transgression”. “Al Maidah 5:2, see the authoritive juristic text, Mugni of Ibn Qudamah vol4 p306”.
2. The second situation covers the case where the landlord leases the premises for a permissible activity as stated in the lease (eg. general dealer). The tenant however voluntarily, and without the consent of the landlord, uses the premises for a prohibited activity. Such conduct of the tenant is a new independent cause which breaks the chain of causation, and therefore cannot not be attributed to the landlord; bearing in mind that the intention of the landlord was not to let the premises for a prohibited activity, because only a permissible use is stipulated in the lease. It is only this situation, that gave rise to a difference of opinion in the Hanafi school between Imam Abu Hanifah, on the one hand, and Imam Abu Yusuf and Imam Muhammad, on the other. The latter still held that the lease was void, and the rental specified impermissible. (see the well known juristic text, Al Mabsut, Sarakhsi, vol 16).
3. Against this background, the relevant fatwas of the Indo Pak scholars must be considered in proper context. They only deal with the second situation referred to in paragraph 2 above, where the landlord does not expressly authorize the letting and use of his premises for a prohibited haraam activity, and therefore does not intend to commit a prohibited act. On the contrary, as stated above, the act of the tenant is an independent one, not explicitly authorised by the lease contract, which in turn breaks the chain of causation. As was stated by Allama Zafar Ahmed. Thanvi (ra), Imam Abu Hanifah (ra) only permitted a contract that was a means to escape from haram conduct, (and not vice versa): see his well known work : ila al Sunan vol 14 p172.
4. In short, therefore, any conventional lease which expressly specifies and stipulates that the tenant is entitled and authorized to use the premises leased, for a prohibited activity, such as a conventional bank, or conventional insurance, or sale of liquor, is null and void, with the result that the rental is impermissible, by consensus of jurists across the board in all schools. In this situation, the landlord and tenant by contractual arrangement collude and co-operate with each other, to use the premises for a prohibited purpose or actitivity.
5. The aforegoing opinion is consistent with the standpoint of the contemporary Shariah experts including the recognised international fiqh academies.
AND ALLAH KNOWS BEST!