Wednesday, February 08, 2012

Q&A: Duration of lease and defining wage for worker

The following is a translation from Arabic.

Question: 
 
It came in the book of the Economic System, page 90, line 6 from the top:

"Because the lease must be known, and the failure of mentioning the duration in some works makes it unknown.  And if the lease was unknown it would not be allowed."

It came in the same page, line 14:

"If the period was mentioned in the contract, or if its mention in the contract was necessary to remove the unfamiliarity, then this period must be specified by a duration of time, such as a minute, an hour, a week, a month or a year."

It also came in page 91, line 8, of the same book:

"In conclusion, the wage must be known in a way that removes the unfamiliarity, so that it can be fulfilled without dispute. This is because the basic principle in all of the contracts is to prevent the disputes between the people. There must be an agreement upon the wage before the start of work; and it is disliked to use of an employee before agreement over the wage with him. "

The question is: Does the word "must" mean the usual obligation used in the provisions of accountability (takleef), meaning the obligation whose disclaimer is considered sinful? If this is the case, why it is then said in page 91, line 11: "and it is disliked to use the employee before agreement with him over the wage." How can we reconcile between the word "should" mentioned above, and the word of "disliked" in the last text? All of the texts mention that it is not allowed to conclude a contract that includes unfamiliarity.

If the contract is invalid for failing to mention the wage and the worker is entitled of the wage of his equivalent; and we mention that the one involved in an invalid contract is considered sinful until the invalidity was adjusted. Understanding that there is no sin in the disliked matter, how then we say it is disliked, and he is sinful if he did not mention the wage, thus invalidates the contract?

I wish you clarify this, May Allah bless you.

Answer:

It was mentioned in the Economic System:

In page 90, it said: "If the period was mentioned in the contract, or if its mention in the contract was necessary to remove the unfamiliarity, then this period must be specified by a duration of time, such as a minute, an hour, a week, a month or a year."

In page 91, line 8, it said: "In conclusion, the wage must be known in a way that removes the unfamiliarity, so that it can be fulfilled without dispute. This is because the basic principle in all of the contracts is to prevent the disputes between the people. There must be an agreement over the wage before the start of work; and it is disliked to use an employee before the agreement over the wage with him".

And you ask, thinking that there is a conflict: at one time we say (must), and say (disliked) at another time!

* As for that mentioned in page 90, it is clear, and nothing strange in it, as it speaks about defining the time term as "obligatory", and that if it was not specified in a way that removes unfamiliarity, the lease is not allowed, ie it is invalid. This is clear, without ambiguity.

* As regards what is mentioned in page 91, it is two issues which you thought them one:

The first issue: That the wage is known in a way that removes unfamiliarity. So, it is not allowed to specify his wage as in the example mentioned at the top of page 91 itself by saying to him: "your wage is part of the crops you harvested", this is not allowed. Rather, his wage must be specified in a clear known way that removes the disputes, such as saying "your wage is a saa or a mudd; or collect to me the crops of these ten acres, and your wage is the crops of this acre ..."; this means the provision here is obligation.

The second issue: It is not related to the obligation of that the wage, once specified, must be known in a way that removes unfamiliarity, but related to determining the wage of the employee before using him: Do you tell him of his wage before using him, or you use him before determining his wage? The ruling in this case is the dislike, namely not prohibited, so the employment contract would not be invalid, but rather the worker is given the wage of the equivalent...

* Thus, the question is of two issues:

First: When you determine a wage it must be known in a way that removes unfamiliarity, otherwise it is invalid.

Second: When you hire the employee; would his appointment be after defining his wage or before defining his wage? Provision in this case is the dislike, which means the appointment is valid, and the employee is entitled of the wage of the equivalent. In other words:

- When you hire the employee, it is disliked to use him before determining his wage.

- And when you determine the wage of the employee in the appointment contract it must be known in a way that removes the unfamiliarity.

15 Rabee' II 1432
20/3/2011

Source

No comments: