Islamic Law of Transaction: Simple Loan — Hanafi/Maliki vs Shafi‘i/Hanbali

For a simple loan (‘āriyah), the schools differ on what exactly the borrower receives.

1. Hanafi and Maliki View

The Hanafis and Malikis say that a simple loan gives the borrower:

ownership of the usufruct without payment.

This means the borrower legally owns the temporary benefit or use of the property while the loan continues.

Example

Ali lends Ahmad a bicycle for free.

Under the Hanafi and Maliki view:

Ali → owns the bicycle

Ahmad → owns the usufruct of riding it

So Ahmad may:

• use the bicycle himself, and
• generally re-lend it to another person.

But he may not lease it for money.

Why?

Because the original simple loan is:

non-binding / revocable

while a lease is:

binding

So a weaker, revocable contract should not be used to create a stronger, binding contract.

Easy Rule

Hanafi + Maliki = ownership of usufruct

So:

Use personally ✅

Re-lend ✅

Lease for money ❌

2. Shafi‘i and Hanbali View

The Shafi‘is and Hanbalis define a simple loan differently.

They say it gives the borrower:

permission to use the property without payment.

The borrower does not own the usufruct in the same sense.

Instead, the owner has personally allowed him to use the property.

Example

Ali tells Ahmad:

“You may use my bicycle for one week.”

Under the Shafi‘i and Hanbali view:

Ali → owns bicycle and usufruct

Ahmad → receives permission to use it

Therefore Ahmad may:

ride it himself ✅

but he may not automatically:

re-lend it to Yusuf ❌

Why?

Because Ali gave permission to Ahmad, not to Yusuf.

3. The Main Difference

The disagreement is about:

What does the borrower legally receive?

Hanafi and Maliki

Borrower receives:

ownership of usufruct

Therefore he has some power over the benefit itself.

Shafi‘i and Hanbali

Borrower receives:

personal permission to use

Therefore his right is more personal and cannot normally be transferred to someone else.

4. One Example Showing All Four Schools

Ali lends his car to Ahmad for free.

Hanafi and Maliki

Ahmad receives:

ownership of the car’s usufruct

He may:

• drive it himself ✅
• generally re-lend it ✅
• rent it to someone for money ❌

Shafi‘i and Hanbali

Ahmad receives:

permission to use the car

He may:

• drive it himself ✅
• re-lend it without Ali’s authority ❌
• lease it to another person ❌

5. Why Is the Hanafi/Maliki Right Still Non-Binding?

This is important.

Even though Ahmad owns the usufruct under the Hanafi/Maliki view, the simple-loan contract itself is non-binding.

So Ali may normally recall the car.

When Ali validly recalls it:

simple loan ends

↓

Ahmad’s usufruct ends

Therefore:

Hanafi/Maliki ownership of usufruct is real, but revocable.

It is not the same as the stronger, binding usufruct created by a lease.

6. Simplest Memory Rule

Hanafi + Maliki

“The benefit is temporarily mine.”

Ownership of usufruct

Shafi‘i + Hanbali

“The owner allows me personally to use the benefit.”

Permission to use

So the easiest exam shortcut is:

Hanafi/Maliki = usufruct ownership; Shafi‘i/Hanbali = permission to use.