Islamic Law of Transaction: Can a Lessee Transfer or Sublease the Usufruct Without the Lessor’s Permission?

The starting point for all four madhhabs is important:

In a valid ijarah (lease), the lessee acquires a legal right/ownership over the agreed usufruct (manfa‘ah) for the lease period.

For example:

Ali → owns the house

Ahmad → rents it for 3 years

Therefore:

Ali owns the physical house

Ahmad owns the 3-year residential usufruct

Because Ahmad owns the benefit, he may generally use it himself or, subject to the rules below, allow another person to enjoy the same or less harmful benefit. The majority of jurists permit a tenant to sublease to another person where the second user’s use is equivalent or less harmful. 

1. First: What Does “Transfer or Sell the Usufruct” Mean?

The lessee cannot sell the physical house, because he does not own it.

But he may potentially transfer his right to use the house.

This could happen:

Without payment

Ahmad tells Yusuf:

“You may live in the apartment instead of me.”

This is transferring or allowing another person to enjoy the benefit.

With payment

Ahmad tells Yusuf:

“Pay me RM1,500 per month and you may live here.”

This is a:

Sublease

So when we say the lessee can “sell the usufruct,” it is clearer to say:

He may sublease or transfer his leasehold benefit.

He is not selling the physical property.

2. The General Rule: Same Use or More Harmful Use?

Before discussing the madhhabs, ask:

Will the new user use the property in the same way as the original tenant?

Same or less harmful use

Example:

Ahmad rented a house for ordinary residential use.

Yusuf will also use it as an ordinary residence.

Generally:

substitution/sublease may be permitted.

More harmful use

Ahmad rented it as a home.

Yusuf wants to turn it into a metalworking factory.

Now:

residential use → heavy industrial use

This creates more wear and possible damage.

The lessee cannot simply transfer that greater use without the owner’s permission. Classical Hanafi material, for example, expressly allows another person to occupy the premises where use does not vary by the user but prohibits uses such as blacksmithing or milling when they would harm the building. 

3. Hanafi View

The Hanafis strongly connect the rule to ownership of usufruct.

Once Ahmad leases the house, he owns the agreed benefit.

Therefore, where use does not materially differ according to the user, he may generally:

• use it himself,
• let another person use it,
• sublease it.

Classical Hanafi texts state that a tenant of a house may house another person by lease or loan where the use is of the same kind and does not cause additional harm. 

Example

Ali leases an apartment to Ahmad for ordinary residential use.

Ahmad subleases to Yusuf.

Yusuf also uses it normally as a residence.

Under the classical Hanafi principle:

Ahmad owns residential usufruct

↓

Yusuf extracts the same residential benefit

↓

generally permissible

4. What If the Hanafi Landlord Says “You Personally Must Live Here”?

This is where the Hanafi position becomes particularly interesting.

According to a classical Hanafi rule reported in the fiqh encyclopedia, if the landlord says:

“You may live here, but no one else may live here,”

and the identity of the resident makes no legal difference to the use, the Hanafis treat such a restriction as ineffective while keeping the lease valid. 

Why?

Because the tenant acquired:

the residential usufruct

not merely:

personal permission to enter the house

So where:

Ahmad’s residential use = Yusuf’s residential use

the landlord normally has no meaningful property-protection reason for distinguishing them.

5. But Modern Hanafi Contracts Need Caution

There is an important practical qualification.

Contemporary Hanafi scholars differ in applying contractual “no subletting” clauses. Some maintain the classical rule that subleasing is permissible if there is no extra harm, while others require the tenant to honor an express contractual prohibition. Compare contemporary Hanafi rulings allowing subletting in principle with rulings requiring compliance with a signed no-sublease condition. 

Therefore, for study purposes:

Classical Hanafi rule: same usufruct can generally be transferred without fresh permission.

But for a real modern lease:

A written no-sublease clause and local law should not simply be ignored.

6. Hanafi Rule About Making Profit From a Sublease

The Hanafis have another special rule.

Suppose:

Ali charges Ahmad:

RM1,000

Ahmad subleases to Yusuf for:

RM1,500

Classical Hanafi law places restrictions on Ahmad keeping the extra RM500 where the rent is in the same kind/currency and Ahmad has added nothing to the property.

If Ahmad made an improvement or added something of value, or the second rent is of a different type, the ruling may differ. 

So:

Hanafi: subleasing itself may be valid, but profiting from the rent has additional rules.

7. Maliki View

The Malikis also recognize that the lessee owns the usufruct.

The majority position, including the Maliki school, allows the lessee to sublease the property to another person for:

• the same rent,
• a lower rent,
• or a higher rent,

provided the second user’s use is not more harmful than the original permitted use. 

Example

Ali rents a shop to Ahmad.

Ahmad subleases it to Yusuf.

Both operate the same type of light retail business.

Generally:

permissible under the Maliki approach.

8. What If the Maliki Lessor Expressly Prohibits Another User?

Here the Maliki position differs from the classical Hanafi position.

The Malikis generally give greater effect to an express condition specifying that another person may not occupy/use the property, apart from what normal custom allows. 

So if Ali says in the contract:

“Ahmad alone may occupy this property; it may not be transferred to another person,”

the Maliki approach generally treats that condition as legally significant.

Therefore:

Maliki

No restriction in contract + same/less harmful use:

sublease generally permitted

But:

Express valid restriction:

must generally be respected

9. Shafi‘i View

The Shafi‘is also generally permit the lessee to sublease because the lessee owns the benefit for the lease period.

The Shafi‘i school is part of the majority permitting sublease for:

• equal rent,
• lower rent,
• higher rent,

provided the second use is not more harmful. 

Example

Ahmad rents a house for RM1,500.

He subleases it to Yusuf for RM2,000.

Under the general Shafi‘i rule, the higher sublease rent itself does not create the Hanafi problem concerning the surplus. 

10. What If a Shafi‘i Lease Says “Only You May Use It”?

The classical Shafi‘i treatment is different again.

A source summarizing the madhhab positions states that where the landlord imposes a condition that the tenant may not allow another equivalent user to occupy the property, the Shafi‘is may regard the condition—and in that formulation the lease itself—as defective, because it contradicts the normal effect of the usufruct that the lease transfers. 

The logic is roughly:

Lease gives usufruct

↓

usufruct normally includes lawful enjoyment of that benefit

↓

a condition removing an essential consequence of the lease may cause a contractual problem.

So the Shafi‘i answer is not simply:

“The condition is valid and tenant must obey.”

There is a deeper issue about whether that condition itself is legally valid.

11. Hanbali View

The preferred/stronger Hanbali position also permits the lessee to sublease to someone whose use is equivalent or less harmful.

Classical Hanbali sources cited in comparative discussions permit a lessee to lease the property to someone who takes his place, and the preferred Hanbali view permits the second rent to be:

• equal,
• lower,
• or higher. 

There is also another reported Hanbali view restricting profit on the sublease, but the more prominent position permits it. 

12. What If the Hanbali Lessor Forbids Subleasing?

The Hanbalis generally give legal weight to an express condition imposed by the lessor.

The fiqh encyclopedia summary groups the Malikis and Hanbalis together in recognizing a condition that another person may not occupy the leased property, subject to customary exceptions. 

Therefore:

Hanbali

No restriction + same/less harmful use:

sublease generally allowed

But:

Valid express no-transfer/no-sublease condition:

generally must be respected

13. So Does the Lessee Normally Need Fresh Permission?

If there was no restriction in the original lease, and the second person will use the property in the same or less harmful manner, the general classical rule is:

Fresh permission from the lessor is normally not required simply because the user changes.

This follows from the fact that the lessee has acquired the usufruct, rather than receiving only personal permission. The majority permits subleasing where the second use is no more harmful. 

Example

Ali rents Ahmad an apartment for ordinary residential use.

Nothing is said about subleasing.

Ahmad subleases to Yusuf.

Yusuf also uses it normally as a residence.

Generally:

Ali’s fresh permission is not required merely because Yusuf is now the resident.

14. But If Use Changes, Permission Is Needed

Suppose Ahmad rented a building as:

ordinary residence

and wants Yusuf to operate:

a metal workshop

Now the change creates greater wear or risk.

In this situation, Ahmad’s usufruct does not automatically include that heavier use.

Therefore:

The owner’s permission is required.

The Hanafi sources expressly distinguish ordinary interchangeable residential use from damaging trades, and the majority sublease rule similarly requires the new user to cause no greater harm. 

15. The Four Schools in the Simplest Form

Hanafi

Same use / no extra harm

→ generally may transfer or sublease the usufruct.

→ classical Hanafi law may disregard a personal-use-only restriction where identity makes no difference.

→ special Hanafi restrictions apply to keeping a higher sublease rent in the same currency unless value was added. 

Maliki

Same or less harmful use

→ generally may sublease.

→ may normally charge equal, lower, or higher rent.

→ an express valid restriction by the lessor generally matters. 

Shafi‘i

Same or less harmful use

→ generally may sublease.

→ may normally charge equal, lower, or higher rent.

→ a condition improperly restricting the normal usufruct may itself create a validity problem for the condition/lease under the classical formulation. 

Hanbali

Same or less harmful use

→ preferred position generally permits subleasing.

→ preferred view permits equal, lower, or higher rent.

→ an express valid prohibition is generally respected. 

16. Why Is Lease Different From Simple Loan?

This now connects perfectly with the earlier topic.

Lease

The lessee receives:

ownership of usufruct

• ●

binding contract

Therefore he has a strong legal interest in the benefit and may generally transfer that benefit within its lawful limits.

Simple Loan — Hanafi/Maliki

Borrower receives:

usufruct

but through a:

non-binding contract

Therefore he may re-lend but cannot create the stronger binding lease from that weaker right.

Simple Loan — Shafi‘i/Hanbali

Borrower receives:

personal permission to use

Therefore he normally cannot re-lend without authorization.

17. Best Rule to Memorize

In a lease, the lessee owns the agreed usufruct, so all four madhhabs generally recognize some ability to let another person enjoy or sublease that usufruct where the new use is the same or less harmful. The major differences concern contractual restrictions and sublease profit: Hanafis are especially permissive about interchangeable users but restrict certain sublease profits, while Malikis and Hanbalis generally give greater effect to an express no-sublease condition, and the Shafi‘i school treats some restrictive conditions as inconsistent with the lease itself.

For an exam, the shortest useful formula is:

Lease → usufruct is owned → same benefit can generally be transferred → greater/different harm requires owner’s permission → explicit no-sublease conditions produce madhhab differences.

Islamic Law of Transaction: Can Waqf Beneficiaries Transfer or Sell the Usufruct?

Yes, beneficiaries may sometimes transfer the use of the usufruct to another person, but you should not automatically conclude that they may sell it for money in every case.

The first important point is that, in a waqf, there is usually no ordinary private owner whose permission must be obtained. The physical asset has been dedicated as waqf. What controls the beneficiaries is mainly the waqf deed, the founder’s conditions, the nature of the benefit, and applicable Islamic legal rules.

1. Can the beneficiary let another person use the usufruct?

According to the passage you provided, yes, provided the waqf terms or accepted custom do not prohibit it.

For example, a house is made waqf for a group of beneficiaries. Ahmad is entitled to its usufruct. If the waqf arrangement permits it, Ahmad may allow Yusuf to enjoy that benefit.

So:

Waqf asset → remains waqf

Ahmad → entitled to usufruct

↓

Ahmad may allow Yusuf to use the benefit

provided:

waqf terms/custom do not prohibit it

2. Does Ahmad Need Permission From the “Owner”?

This question needs adjustment because with waqf there is ordinarily no private owner like a landlord.

Compare:

Lease:

Ali owns house → Ahmad leases from Ali.

Here Ali is the private owner.

But:

Waqf:

House is permanently dedicated → Ahmad is beneficiary.

Here you do not normally ask:

“Did the owner give Ahmad permission?”

Instead ask:

“Does the waqf deed allow Ahmad to transfer or share his usufruct?”

The founder’s conditions become very important.

3. Example: Waqf Allows Transfer

Suppose Ali establishes a house as waqf and states:

“The beneficiaries may occupy the house themselves or allow another eligible person to occupy it.”

Ahmad is a beneficiary.

Ahmad may allow Yusuf to use it because:

the waqf terms permit transfer of the benefit.

No separate permission from Ali is normally needed after the waqf has been validly created, because Ali no longer treats the house as his ordinary private property.

4. Example: Waqf Prohibits Transfer

Suppose the waqf deed states:

“Each named beneficiary may personally occupy one room, and the right may not be transferred to another person.”

Ahmad cannot simply give his room to Yusuf.

Why?

Because:

Ahmad’s usufruct exists subject to the waqf conditions.

So:

Beneficiary ownership of usufruct does not mean unlimited freedom over the usufruct.

5. What About Selling the Usufruct?

This is more complicated.

“Selling usufruct” usually means giving another person the benefit in exchange for money.

For example:

Ahmad has the right to occupy a waqf shop.

He tells Yusuf:

“Pay me RM1,000 per month and you can use my shop.”

That is not merely allowing Yusuf to use it for free.

It is effectively a lease or compensated transfer of the usufruct.

Whether Ahmad may do this depends on:

• the terms of the waqf,
• the nature of Ahmad’s entitlement,
• whether his right is personal or transferable,
• applicable madhhab rules,
• whether the transaction harms the waqf or other beneficiaries.

So you should not memorize:

“Beneficiary owns usufruct, therefore he can always sell it.”

That is too broad.

6. “Give the Usufruct” and “Sell the Usufruct” Are Different

This distinction matters.

Give another person use

Ahmad tells Yusuf:

“You may stay here.”

No payment.

This may be allowed if the waqf terms and custom permit it.

Transfer for payment

Ahmad tells Yusuf:

“Pay me RM1,000 and you can use it.”

Now Ahmad is trying to create a compensated transaction.

That requires a separate legal analysis.

Therefore:

The passage clearly supports allowing another person to extract the usufruct where the waqf terms/custom permit it, but it should not automatically be read as allowing every beneficiary to commercially sell or lease the usufruct.

7. What Does “Owner’s Permission” Mean Here?

For ordinary property:

Owner’s permission may matter.

For waqf:

the better questions are:

What did the founder stipulate?

↓

What does the waqf deed permit?

↓

What does custom allow?

↓

Does the trustee/mutawalli have authority over this issue?

↓

Does the proposed transfer preserve the purpose of the waqf?

Mutawalli

A mutawalli is the person appointed to administer or manage the waqf.

The mutawalli does not personally own the waqf property. He manages it according to the waqf terms and Islamic law.

8. Example With a Waqf House

A house is dedicated as waqf for university students.

Situation A

Ahmad is an eligible student and lets another eligible student stay with him.

The waqf terms do not prohibit this.

→ May be allowed.

Situation B

Ahmad leaves and rents his room to a businessman for RM2,000 per month.

The waqf was specifically for students.

→ Not automatically allowed, because this may violate the purpose and conditions of the waqf.

Situation C

The waqf deed expressly allows beneficiaries to lease their allocated benefit to another eligible beneficiary.

→ The compensated transfer may then be permissible according to the governing rules.

9. The Key Principle

The usufruct beneficiary does not have the same freedom as someone who owns a house completely.

A total owner may normally decide:

“I own the house and its benefit, so I will rent it.”

But a waqf beneficiary should think:

“I have the benefit because the waqf gives it to me, so I can only deal with that benefit within the limits of the waqf.”

That is the major difference.

Simplest rule to remember

A waqf beneficiary may use the usufruct and may sometimes allow or transfer its use to another person if the waqf deed and custom permit it. However, the beneficiary cannot automatically sell or lease the usufruct merely because he is entitled to it; a compensated transfer must also be allowed by the waqf’s terms and applicable Islamic rules.

And instead of asking “Did the owner permit it?”, for waqf usually ask:

“Did the waqf terms permit it?”

Islamic Law of Transaction: Waqf and Ownership of Usufruct

1. What Is a Waqf?

A waqf is property that is permanently dedicated for a religious, charitable, family, or social purpose.

The original text uses the word mortmain, but the clearer Islamic term is:

Waqf

Example

Ali dedicates a house as a waqf for poor students.

The house is no longer treated like Ali’s ordinary private property.

Instead, it is set aside permanently for the purpose stated in the waqf.

2. What Happens to Ownership of the Physical Property?

According to the passage, once the property becomes a waqf:

the physical property can no longer be privately owned in the ordinary way.

This means the waqf property is removed from normal private ownership.

Example

Ali makes a house a waqf for travelers.

After that, Ali cannot simply treat the house like his normal private house and say:

“I will sell it whenever I want.”

The house has been permanently dedicated to the waqf purpose.

So:

Private property

↓

Valid waqf created

↓

property dedicated permanently

↓

ordinary private ownership ends

3. What Happens to the Usufruct?

Although the physical property itself is dedicated as waqf, its usufruct is given to the people named as beneficiaries.

Usufruct — Manfa‘ah

Usufruct means the legal right to use and benefit from property.

So:

Waqf property itself → dedicated

Usufruct → given to beneficiaries

4. Example

Ali establishes a house as a waqf for university students.

The students do not own the physical house.

But they may receive the right to:

• live in it,
• use its rooms,
• enjoy the benefit specified by the waqf.

So:

House itself → waqf

Students → owners/holders of the usufruct

5. Who Are the Beneficiaries?

The people who are entitled to benefit from a waqf are called:

Beneficiaries

These are the persons or group named in the waqf arrangement.

Examples:

• poor people,
• travelers,
• students,
• family members,
• mosque users,
• patients,
• another named group.

6. Can the Beneficiaries Use the Waqf Property Themselves?

Yes.

If the waqf gives them the usufruct, they may personally enjoy that benefit.

Example

A house is made waqf for travelers.

Travelers may:

stay in the house themselves

because the benefit was created for them.

So:

Waqf

↓

usufruct assigned to travelers

↓

travelers personally use the property

7. Can the Beneficiaries Allow Someone Else to Use the Benefit?

According to the passage:

Yes, generally.

The beneficiaries may give another person the right to enjoy the usufruct if this is not prohibited by:

• the waqf deed or contract,
• the terms set by the founder,
• accepted custom or convention.

So:

Beneficiary owns/holds usufruct

↓

may use it himself

OR

↓

may allow another person to use it

↓

unless restricted

8. Example Where Transfer Is Allowed

Suppose a house is made waqf for students.

The waqf terms do not say that only the named students may personally occupy it.

If the legal arrangement and custom allow it, the beneficiary may permit another person within the permitted category to enjoy the benefit.

The important point is:

The usufruct can sometimes be transferred or shared, but only within the limits of the waqf.

9. Example Where Transfer Is Not Allowed

Suppose the waqf deed states:

“This house is only for poor female students enrolled at this school.”

A beneficiary cannot simply give the house to someone outside that group.

Why?

Because the waqf terms restrict who may benefit.

So:

Waqf terms

↓

define the beneficiaries

↓

benefit cannot be transferred contrary to those terms

10. What Does “Convention” Mean?

The passage also mentions convention.

This means accepted custom or normal practice.

In Islamic law, this is often connected to:

‘Urf

‘Urf means recognized custom.

Example

A waqf building is intended for quiet student accommodation.

Even if the document does not list every prohibited activity, normal custom may make it clear that the building cannot be turned into a noisy commercial workshop.

So custom can help explain:

• how the property may be used,
• who may use it,
• whether the benefit may be transferred.

11. The Physical Property and Its Benefit Are Separated

This is another example of partial ownership.

The physical property is dedicated as waqf.

The beneficiaries receive the usufruct.

So:

Physical asset → waqf

Usufruct → beneficiaries

This shows again that:

Ownership of the benefit can exist separately from ownership of the physical asset.

12. Example With a Farm

Ali establishes farmland as waqf for poor families.

The poor families do not own the land itself.

But they may receive the right to:

• cultivate it,
• collect produce,
• benefit from its use,

depending on the waqf terms.

So:

Land → waqf

Farming benefit → beneficiaries

13. Example With a Shop

A shop is made waqf for the benefit of an orphanage.

The physical shop remains waqf property.

The income or use of the shop may be directed to the orphanage according to the waqf terms.

So:

Shop itself → waqf

Benefit/income → designated beneficiaries

14. Can the Beneficiaries Sell the Waqf Property?

No, not simply because they enjoy its usufruct.

They do not own the physical property in the ordinary private sense.

Therefore, receiving the usufruct does not normally give them the right to sell the waqf asset itself.

Example

Students live in a waqf house.

They cannot say:

“Because we use the house, we will sell it.”

They own or hold:

the benefit

not:

the physical waqf property

15. Can the Beneficiaries Sell or Transfer the Usufruct?

The passage says they may allow another person to enjoy the usufruct if:

• the waqf terms do not prohibit it, and
• accepted custom does not prohibit it.

This means their power over the benefit is real, but it is not unlimited.

So:

Usufruct ownership is controlled by the purpose and conditions of the waqf.

16. One Complete Example

Ali makes a house waqf for travelers.

Step 1 — Waqf Is Created

The house is permanently dedicated.

Ali can no longer treat it like normal private property.

Step 2 — Beneficiaries Are Identified

The beneficiaries are:

travelers

Step 3 — Travelers Receive Usufruct

They may:

stay in the house

and enjoy its residential benefit.

Step 4 — Can They Let Someone Else Use It?

Possibly yes, if:

• the waqf terms allow it,
• the person falls within the allowed use,
• custom does not prohibit it.

Step 5 — Can They Sell the House?

No.

Because:

they own/hold the usufruct

not:

the physical waqf asset

17. Why Is This Different From a Lease?

In a lease:

Owner keeps physical property

Tenant receives usufruct for payment

In a waqf:

Physical property is permanently dedicated

Beneficiaries receive usufruct according to the waqf purpose

So both involve usufruct, but they arise through different legal arrangements.

18. Why Is This Different From a Simple Loan?

In a simple loan:

Owner temporarily allows use without payment

In a waqf:

Property is permanently dedicated to a purpose

and the beneficiaries receive the benefit according to the waqf terms.

So:

Simple Loan

temporary use from a private owner

Waqf

continuing benefit from permanently dedicated property

19. Direct Questions and Answers

Question 1: What happens to a property when it becomes waqf?

Answer:

It becomes permanently dedicated and is no longer treated like ordinary privately owned property.

Question 2: Who receives the usufruct?

Answer:

The persons or group named as beneficiaries in the waqf.

Question 3: Do the beneficiaries own the physical property?

Answer: No.

They own or hold the usufruct, not the physical waqf asset.

Question 4: Can the beneficiaries use the property themselves?

Answer: Yes.

They may personally enjoy the benefit allowed by the waqf.

Question 5: Can they allow someone else to use the benefit?

Answer: Generally yes, if this is not prohibited by:

• the waqf terms,
• the founder’s conditions,
• accepted custom.

Question 6: Can they sell the waqf property?

Answer: No, not simply because they are beneficiaries.

Their right is over the usufruct, not ordinary ownership of the physical asset.

20. Final Flow

WAQF

↓

Physical property permanently dedicated

↓

ordinary private ownership ends

↓

usufruct assigned to beneficiaries

↓

Beneficiaries may:

use the benefit themselves

OR

allow another to use it

↓

provided:

waqf terms and custom allow it

21. One-Sentence Rule to Memorize

In a waqf, the physical property is permanently dedicated and is not privately owned in the ordinary sense, while the named beneficiaries receive the right to use and benefit from its usufruct according to the conditions of the waqf.

The easiest memory shortcut is: Waqf = asset permanently dedicated; beneficiaries receive the benefit.

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.

Islamic Law of Transaction: How Can a Non-Binding Simple Loan Create Ownership of Usufruct?

The key is to separate two different questions:

1. Does the borrower presently own the usufruct?
2. Is that ownership guaranteed to continue for the whole stated period?

Under the Hanafi and Maliki view, the answer can be:

Yes, the borrower presently owns the usufruct — but that ownership is revocable because the simple loan is non-binding.

That is not a contradiction.

1. “Ownership” Does Not Always Mean Permanent Ownership

When we say the borrower owns the usufruct, we do not mean that he owns it permanently or that the lender can never take it back.

It means:

While the simple loan continues, the borrower has a legally recognized right over the benefit of the property.

Example

Ali lends Ahmad a bicycle for one week.

Under the Hanafi and Maliki approach:

Ali → owns the bicycle itself

Ahmad → owns the usufruct of riding it

But because the simple loan is non-binding, Ali may recall the bicycle before the week ends.

So Ahmad’s usufruct exists:

while the loan remains in force.

2. What Does “Non-Binding” Mean?

A non-binding contract means that one or both parties may terminate the contract without having to wait until the originally expected period ends.

In a simple loan:

The lender may normally ask for his property back.

Example

Ali says:

“You may borrow my bicycle for one month.”

Ten days later, Ali needs it back.

Because the simple loan is non-binding, Ali may recall it.

When the loan ends:

Ahmad’s usufruct ends

↓

Ali again has the physical asset + its full benefit

3. So Ahmad Really Had Usufruct — It Was Just Revocable

This is the most important point.

Before Ali recalls the bicycle, Ahmad is not merely holding it.

He is legally entitled to:

ride and benefit from it.

Therefore:

Usufruct exists ✅

But:

It can be terminated by the lender ✅

So the correct description is:

Revocable ownership of usufruct

rather than:

Permanent or guaranteed ownership of usufruct

4. Non-Binding Does Not Mean “No Legal Right”

This is where the confusion comes from.

Non-binding does not mean:

“The borrower has no legal right.”

It means:

“The legal right exists, but the contract creating it can be terminated.”

Example

Ali lends Ahmad a house.

While the loan continues:

Ahmad may lawfully live there.

A stranger cannot simply remove Ahmad and say:

“You have no rights because this is only a simple loan.”

Ahmad does have a right of use.

However, Ali—the person who created that right—may normally terminate the simple loan and demand the property back.

5. Think of It as Two Layers

Layer 1 — What Right Does the Contract Create?

Simple loan creates:

usufruct without payment

under the Hanafi and Maliki view.

Layer 2 — How Secure Is That Right?

The simple loan is:

non-binding / revocable

Therefore, the usufruct can end when the lender validly recalls the property.

So:

Ownership of usufruct

does not automatically mean:

irrevocable ownership of usufruct

6. Why Is a Lease Different?

A lease (ijarah) also gives ownership of usufruct.

But unlike the simple loan:

Simple loan

Usufruct without payment

• ●

non-binding

Lease

Usufruct for payment

• ●

binding

Example

Ali lends Ahmad a house free for one year.

Ali may normally recall it because the arrangement is a simple loan.

But if Ali rents the house to Ahmad for one year under a valid lease, Ali normally cannot simply say after one month:

“I changed my mind. Leave.”

Ahmad has paid for a binding one-year usufruct.

7. This Explains Why the Borrower Cannot Lease the Borrowed Property

Now the earlier rule makes more sense.

Suppose:

Ali lends car to Ahmad

↓

Ahmad’s usufruct is based on a:

non-binding simple loan

If Ahmad then rents the car to Yusuf:

Ahmad tries to create a binding lease for Yusuf

That creates a problem.

Ahmad’s own right can disappear whenever Ali validly recalls the car.

How can Ahmad give Yusuf a stronger right than Ahmad himself has?

Therefore:

A weaker, revocable contract cannot normally be used as the basis for a stronger, binding contract.

8. But Why Can Ahmad Re-Lend It?

Under the Hanafi and Maliki view, Ahmad may generally re-lend the property because the second simple loan is also:

non-binding

So the strength of the second right does not exceed the first.

Example

Ali → lends bicycle to Ahmad

↓

Ahmad → re-lends bicycle to Yusuf

Both arrangements are simple loans.

So:

First contract = non-binding

Second contract = non-binding

There is no attempt to create a stronger legal right.

9. Compare Re-Lending and Leasing

Re-Lending

Ahmad received:

revocable usufruct

and gives Yusuf:

revocable use/usufruct

This can fit within Ahmad’s right.

Leasing

Ahmad received:

revocable usufruct

but tries to give Yusuf:

binding paid usufruct

That is stronger than Ahmad’s own legal position.

Therefore, it is not allowed under the rule you are studying.

10. Example With a House

Ali tells Ahmad:

“You may stay in my house for six months for free.”

Under the Hanafi/Maliki view:

Ali → owns house

Ahmad → owns its residential usufruct

But the contract is non-binding.

After two months Ali says:

“I need my house back.”

The simple loan ends.

Therefore:

Ahmad’s usufruct ends

This does not mean Ahmad never owned usufruct.

It simply means:

His ownership of the usufruct depended on the continued existence of the simple-loan contract.

11. Ownership Can Be Limited in Different Ways

This also connects to the wider topic of ownership.

Not every ownership interest has the same strength.

Ownership may be:

• complete or partial,
• permanent or temporary,
• binding or revocable,
• restricted or unrestricted.

So merely saying:

“This is ownership”

does not tell us:

how long it lasts or how easily it can end.

In the case of a simple loan:

Type of right → ownership of usufruct

Strength of contract → revocable/non-binding

12. The Best Way to Remember It

Do not think:

Ownership = must be permanent and impossible to cancel.

Instead think:

Ownership tells us what legal interest the person presently has.

while:

Binding or non-binding tells us how secure that legal interest is against termination.

Therefore:

Simple Loan

What does borrower have?

→ Usufruct

How secure is it?

→ Revocable / non-binding

Lease

What does lessee have?

→ Usufruct

How secure is it?

→ Binding for the agreed period

13. One-Sentence Rule

Under the Hanafi and Maliki view, a simple loan gives the borrower present ownership of the usufruct, but because the loan is non-binding, that usufruct is revocable and ends when the lender validly recalls the property.

Easiest memory formula

Simple loan = ownership of usufruct + free + revocable

Lease = ownership of usufruct + paid + binding

Islamic Law of Transaction: Leases and Ownership of Usufruct

1. What Is a Lease?

A lease (ijarah) is a contract where the owner of property gives another person the right to use and benefit from that property in exchange for payment.

The payment is called:

• rent when property is leased, or
• wages when services are hired.

Example

Ali owns an apartment.

He rents it to Ahmad for one year for RM2,000 per month.

So:

Ali → owns the apartment

Ahmad → owns the apartment’s usufruct for one year

RM2,000 per month → rent

2. What Does the Lessee Own?

The lessee is the person who rents the property.

The lessor is the owner who rents the property out.

Under a lease, the lessee does not become owner of the physical property.

Instead, he receives:

ownership of the usufruct in exchange for rent.

Example

Ali rents his car to Ahmad for one month.

During that month:

Ali → owns the physical car

Ahmad → owns the right to use the car

So Ahmad owns:

the benefit

not:

the car itself

3. Why Is a Lease Different From a Simple Loan?

A simple loan gives use without payment.

A lease gives use in exchange for payment.

So:

Simple Loan

Usufruct without compensation

Lease

Usufruct with compensation

Example

Ali lets Ahmad use his bicycle for free.

→ Simple loan

Ali lets Ahmad use his bicycle for RM100.

→ Lease

4. What Can the Lessee Do With the Usufruct?

Because the lessee owns the usufruct, he may:

1. Use the property himself

OR

2. Allow another person to use it

OR

3. Transfer the usufruct to another person for payment

This may include:

Subleasing

A sublease means that the original tenant rents the property to another person.

5. Example: Lessee Uses the Property Himself

Ali rents a house to Ahmad for one year.

Ahmad lives in the house himself.

This is straightforward.

So:

Ali → property

Ahmad → usufruct

↓

Ahmad personally uses the benefit

6. Example: Another Person Uses the Property for Free

Suppose Ahmad rents the house from Ali.

Ahmad allows his brother Yusuf to stay in the house without charging him.

Ahmad is allowing another person to enjoy the usufruct.

This may be allowed if the new user’s use does not create a different type or greater level of use.

7. Example: Sublease for Payment

Suppose Ahmad rents an apartment from Ali for RM2,000 per month.

Ahmad then rents that same apartment to Yusuf.

This is a:

Sublease

So:

Ali → owner

↓

leases to

↓

Ahmad → lessee and owner of usufruct

↓

subleases to

↓

Yusuf → new user

8. The Important Rule: Does Usage Change With Different Users?

This is the most important part of the passage.

The lessee may allow another person to use the property if:

the type and level of use are basically the same regardless of who uses it.

If the use is the same:

lessor’s permission is not necessary according to the rule stated in the passage

But if the use changes depending on the user:

lessor’s permission is necessary

9. What Does “Usage Does Not Vary With Different Users” Mean?

It means the property will be used in roughly the same way and exposed to roughly the same level of wear or risk.

Example

Ali leases an apartment to Ahmad for normal residential use.

Ahmad subleases it to Yusuf, who also uses it as a normal residence.

The use is basically:

residential use → residential use

So the property is not being exposed to a substantially different kind of use.

According to the passage:

the lessee may sublease in this situation even if the lessor said he did not want him to.

This rule applies where the use truly does not differ depending on the person.

10. Why Can the Lessee Sublease?

Because the lessee owns the usufruct during the lease period.

Therefore, he may normally:

enjoy that benefit himself

or

allow another person to enjoy it

provided that doing so does not change or increase the type of use.

So:

Lease

↓

Lessee owns usufruct

↓

May transfer the same benefit

↓

provided the use remains equivalent

11. Example Where the User Does Not Matter

Ali rents Ahmad a normal apartment for residential use.

Ahmad lives there.

Later Ahmad allows Yusuf to live there instead.

If both people use it in the same normal way:

Ahmad’s use = normal residence

Yusuf’s use = normal residence

Therefore:

use does not materially vary

According to the rule in the passage, the substitution or sublease may be allowed without needing new permission from Ali.

12. What If Usage Changes With Different Users?

If the identity of the user changes the level or nature of use, then the lessor’s permission is required.

Why?

Because the new user may:

• cause greater wear,
• create more risk,
• use the property differently,
• expose the owner’s property to greater harm.

So:

Different user

↓

different level/type of use

↓

owner’s permission required

13. Example: Animal or Vehicle Use

Suppose Ali rents a vehicle to Ahmad for ordinary personal use.

Ahmad wants to give it to another person who will use it constantly for heavy commercial deliveries.

Now the use is not the same.

So:

ordinary personal use

is different from:

heavy commercial use

Therefore:

lessor’s permission is required

because the property may suffer greater wear or risk.

14. Example: Building Use

Ali leases a house to Ahmad for family residence.

Ahmad wants to sublease it to someone who intends to use it as a busy commercial workshop.

The use changes from:

residential use

to

commercial heavy use

That is not the same usufruct.

Therefore:

lessor’s permission is necessary

15. The Rule Is About Harm and Type of Use

The key question is not only:

“Is it a different person?”

The better question is:

“Will this new person use the property in a materially different way?”

If the answer is no:

sublease may be allowed

If the answer is yes:

owner’s permission is required

16. What If the Lessor Forbids Subleasing?

The passage gives a strong rule.

If the use of the property does not vary with different users, the lessee may sublease even if the lessor forbids him.

Example

Ali rents a normal apartment to Ahmad.

Ali says:

“Do not sublease it.”

Ahmad wants to sublease it to Yusuf for the same normal residential use.

According to the rule stated in the passage, if the use truly does not change depending on the user:

Ahmad may still sublease

because he owns the usufruct and the owner’s property is not being subjected to a different type of use.

17. But This Rule Has a Limit

Do not understand this to mean:

“A lessee can always ignore the owner’s conditions.”

That would be too broad.

The specific rule in the passage is limited to cases where:

the use does not vary with the identity of the user.

If the use differs, then:

permission becomes necessary

18. Example of Same Use

Ali rents a small apartment to Ahmad.

Ahmad uses it for one adult to live in.

Ahmad then subleases it to Yusuf, who also uses it as an ordinary residence.

If the expected use remains the same:

same type of use

↓

no materially greater burden

↓

sublease may be allowed

19. Example of Different Use

Ali rents farmland to Ahmad for light cultivation.

Ahmad wants to transfer it to someone who will use heavy machinery that may damage the soil.

Now:

use changes

↓

risk changes

↓

owner’s permission required

20. Why Is a Lease Stronger Than a Simple Loan?

This also connects to your earlier topic.

A lease is generally a binding contract.

A simple loan is generally non-binding.

Lease

The lessee pays for a legally protected usufruct.

Simple loan

The borrower receives free use, and the lender may usually recall the property.

This is why the lessee’s rights are generally stronger than those of a simple borrower.

21. Lessee Compared With Simple Borrower

A lessee receives:

usufruct in exchange for compensation

and may generally transfer that usufruct in ways allowed by the legal rules.

A simple borrower receives:

usufruct without compensation under the Hanafi and Maliki approach

but cannot lease the borrowed item because that would turn a weaker non-binding relationship into a stronger binding one.

So:

Lessee → may sublease

while

simple borrower → may not lease the borrowed item

according to the rules in the passages you are studying.

22. One Complete Example

Ali owns an apartment.

He rents it to Ahmad for three years.

Step 1 — Ownership

Ali keeps:

physical ownership

Ahmad receives:

three-year usufruct

Step 2 — Ahmad Uses It Himself

Ahmad lives there.

This is allowed.

Step 3 — Ahmad Lets Yusuf Live There

Yusuf uses it in exactly the same normal residential way.

If usage does not materially vary:

Ahmad may allow Yusuf to use it

Step 4 — Ahmad Subleases It

Ahmad charges Yusuf rent.

If Yusuf’s use is essentially the same:

sublease may be valid

according to the rule stated in the passage.

Step 5 — Yusuf Wants to Use It as a Factory

Now the use changes substantially.

Residential use becomes:

industrial/commercial use

This may increase risk or harm.

Therefore:

Ali’s permission is required

23. Direct Questions and Answers

Question 1: What does a lease transfer?

Answer:

A lease transfers:

ownership of usufruct

in exchange for:

rent or wages

Question 2: Does the lessee own the physical property?

Answer: No.

The lessor remains owner of the physical asset.

Question 3: Can the lessee use the property himself?

Answer: Yes.

He owns the usufruct for the lease period.

Question 4: Can the lessee allow another person to use it for free?

Answer: Yes, generally, if the new use is within the same type and level of usufruct.

Question 5: Can the lessee sublease?

Answer: Yes, according to the passage, if the use does not materially vary depending on the user.

Question 6: What if the lessor says, “No subleasing”?

Answer:

According to the rule stated in this passage, if the use does not vary with different users, the lessee may still sublease.

Question 7: When is the lessor’s permission required?

Answer:

When the identity of the new user changes the type, level, risk, or burden of use.

Question 8: Why?

Answer:

Because the owner should not be exposed to a greater or different use of his property without his consent.

24. Final Flow

LEASE — IJARAH

↓

Lessor owns physical property

↓

Lessee pays rent

↓

Lessee receives ownership of usufruct

↓

Lessee may:

use it himself

OR

allow another person to use it

OR

sublease it

↓

provided:

use remains materially the same

↓

If use changes:

lessor’s permission required

25. One-Sentence Rule to Memorize

A lease gives the lessee ownership of usufruct in exchange for rent, so the lessee may personally use or transfer that benefit, including by subleasing, as long as the new user’s use is not materially different; if the use changes with the user, the lessor’s permission is required.

The easiest memory shortcut is: Lease = paid usufruct; same use = sublease allowed; different use = owner’s permission needed.

Islamic Law of Transaction: Simple Loans and Ownership of Usufruct

1. What Is a Simple Loan?

A simple loan (‘āriyah) is when the owner allows another person to use an item without payment, while ownership of the physical item remains with the owner.

Example

Ali owns a bicycle.

He tells Ahmad:

“You may use my bicycle for one week for free.”

So:

Ali → owns the bicycle

Ahmad → receives the right to use it

No rent is paid.

2. Hanafi and Maliki View

The Hanafi and Maliki schools ruled that a simple loan gives the borrower:

ownership of the usufruct without payment.

Usufruct

Usufruct (manfa‘ah) means the legal right to use and benefit from property.

So under this view:

Physical item → remains owned by lender

Usufruct → belongs temporarily to borrower

Example

Ali lends his bicycle to Ahmad.

Under the Hanafi and Maliki view:

Ali → owns bicycle

Ahmad → owns the temporary benefit of riding it

So Ahmad has more than mere physical possession.

He has a legal right to the benefit.

3. What Can the Borrower Do Under the Hanafi and Maliki View?

Because the borrower owns the usufruct, he may normally:

1. Use the item himself

OR

2. Re-lend it to another person

subject to any restrictions, harm, custom, or conditions.

4. Example: Borrower Uses It Himself

Ali lends Ahmad a bicycle for one week.

Ahmad rides the bicycle himself.

This is allowed because:

Ahmad owns the usufruct for the period of the loan

So:

Simple loan

↓

usufruct transferred without payment

↓

borrower may personally use it

5. Example: Re-Lending

Ali lends Ahmad a bicycle.

Ahmad then allows Yusuf to use the bicycle.

Under the Hanafi and Maliki approach described in the passage, this can be allowed because Ahmad owns the usufruct.

So:

Ali → owns bicycle

Ahmad → owns usufruct

↓

Ahmad re-lends use to Yusuf

This is possible because Ahmad has control over the benefit.

6. But the Borrower Cannot Lease It

The Hanafi and Maliki jurists did not allow the borrower to rent out the borrowed item for money.

Example

Ali lends his car to Ahmad for free.

Ahmad cannot normally say:

“I will now rent Ali’s car to Yusuf for RM500.”

Why?

Because Ahmad received the benefit through a simple loan, not through a lease.

7. Why Can He Re-Lend but Not Lease?

This is the important part.

A simple loan is:

Non-binding

This means the lender can usually ask for the property back at any time.

A lease is:

Binding

This means the tenant normally has a stronger contractual right for the agreed lease period.

Therefore:

A weaker contract should not be used to create a stronger contract.

8. Example of the Problem

Ali lends his car to Ahmad for one month.

Because it is a simple loan, Ali may say after five days:

“Please return my car.”

Now imagine Ahmad had rented the car to Yusuf for one month.

Yusuf might say:

“I have a binding one-month lease.”

This creates a problem.

Ahmad received only a weaker, revocable right from Ali.

But Ahmad tried to give Yusuf a stronger, binding right.

So:

Simple loan = weaker and non-binding

↓

cannot normally become the basis of

↓

lease = stronger and binding

9. Another Reason: Harm to the Owner

The passage also explains that leasing a borrowed item may harm the original owner.

Example

Ali lends Ahmad his car for personal use.

Ahmad rents it to many different people for profit.

This may:

• increase wear and tear,
• expose the car to greater risk,
• use the property beyond what Ali expected.

Therefore, the Hanafi and Maliki jurists did not allow the borrower to lease the borrowed item.

10. Shafi‘i and Hanbali View

The Shafi‘i and Hanbali schools understood simple loans differently.

They defined a simple loan as:

permission to use the property without payment.

This means they did not treat the borrower as owning the usufruct in the same way as the Hanafi and Maliki schools.

Instead:

Owner keeps ownership

↓

borrower receives personal permission to use

11. Example Under the Shafi‘i and Hanbali View

Ali tells Ahmad:

“You may use my bicycle for one week.”

According to the Shafi‘i and Hanbali approach:

Ali → owns bicycle and its benefit

Ahmad → receives permission to use it

Ahmad’s right is therefore more personal.

12. Can the Borrower Re-Lend Under the Shafi‘i and Hanbali View?

No.

Because Ahmad was given:

personal permission to use

not:

ownership of the usufruct

So Ahmad cannot automatically transfer that permission to Yusuf.

Example

Ali tells Ahmad:

“You may use my car.”

Ahmad cannot simply tell Yusuf:

“You use it instead.”

Why?

Because the permission was given to Ahmad.

Ahmad does not own the benefit in a way that allows him to transfer it.

13. This Shows the Difference Between Usufruct and Mere Permission

This passage gives a very clear madhhab difference.

Hanafi and Maliki

Simple loan gives:

ownership of usufruct

Therefore the borrower may normally:

• use the benefit himself,
• re-lend the item,

but may not lease it.

Shafi‘i and Hanbali

Simple loan gives:

unpaid permission to use

Therefore the borrower may:

• personally use the item,

but may not re-lend it to another person.

14. Why Is This Important?

Because the same transaction — a simple loan — is understood differently by the schools.

The question is:

What exactly did the borrower receive?

Hanafi and Maliki answer:

A temporary ownership of usufruct

Shafi‘i and Hanbali answer:

A personal permission to use

That difference affects what the borrower can do next.

15. One Complete Example

Ali lends his car to Ahmad for free.

Under Hanafi and Maliki

Ahmad receives:

ownership of the car’s usufruct

Therefore Ahmad may:

drive it himself ✅

and may generally:

re-lend it to Yusuf ✅

But Ahmad may not:

rent it to Yusuf for money ❌

because a non-binding loan cannot normally be turned into a stronger binding lease.

Under Shafi‘i and Hanbali

Ahmad receives:

personal permission to use the car

Therefore Ahmad may:

drive it himself ✅

But he may not:

re-lend it to Yusuf ❌

because the permission was given specifically to Ahmad.

16. What About Mere Possession?

A simple loan is not merely possession.

The borrower usually has physical possession, but the schools disagree about the legal right attached to that possession.

Hanafi and Maliki

Possession + ownership of usufruct

Shafi‘i and Hanbali

Possession + personal permission to use

So:

Mere possession alone is still different from a simple loan.

Example

Ali gives his car to Ahmad only for safekeeping.

Ahmad has:

possession

but no right to personally drive it.

That is mere possession.

17. Easy Way to Separate the Three Ideas

Mere Possession

“I physically hold the item, but I have no right to use it for myself.”

Example:

A mechanic holding a car for repairs.

Permission to Use

“The owner allows me personally to use it.”

This is the Shafi‘i and Hanbali description of a simple loan.

Ownership of Usufruct

“I legally own the temporary benefit of the item.”

This is the Hanafi and Maliki description of a simple loan.

18. Direct Questions and Answers

Question 1: What do the Hanafis and Malikis say about simple loans?

Answer:

They say a simple loan gives the borrower ownership of the usufruct without payment.

Question 2: Can the borrower use the item himself?

Answer: Yes.

He may personally enjoy the benefit.

Question 3: Can he re-lend it?

Answer:

Under the Hanafi and Maliki view, generally yes, subject to restrictions and harm.

Question 4: Can he lease it for money?

Answer: No.

Because the simple loan is non-binding while a lease is binding.

A weaker contract should not be used to create a stronger one.

Question 5: Why else is leasing prohibited?

Answer:

Because renting out the borrowed item may expose the original owner’s property to harm or greater use than expected.

Question 6: What do the Shafi‘is and Hanbalis say?

Answer:

They say a simple loan is merely an unpaid permission to use the property.

Question 7: Can the borrower re-lend it under the Shafi‘i and Hanbali view?

Answer: No.

Because the borrower received personal permission, not ownership of the usufruct.

Question 8: Is a simple loan merely possession?

Answer: No.

The borrower has a right to use the item.

Under Hanafi and Maliki law, that right is treated as ownership of usufruct.

Under Shafi‘i and Hanbali law, it is treated as personal permission to use.

19. Final Flow

SIMPLE LOAN — ‘ĀRIYAH

↓

Hanafi + Maliki

Free transfer of usufruct

↓

Borrower may:

use personally

or

re-lend

↓

But may not:

lease for money

Shafi‘i + Hanbali

Free permission to use

↓

Borrower may:

use personally

↓

But may not:

re-lend

20. One-Sentence Rule to Memorize

The Hanafis and Malikis treat a simple loan as giving the borrower ownership of usufruct without payment, while the Shafi‘is and Hanbalis treat it as personal permission to use; this is why the first group generally allows re-lending, while the second does not.

The most important shortcut is: Hanafi/Maliki = usufruct ownership; Shafi‘i/Hanbali = permission to use.

Islamic Law of Transaction: Simple Loan, Usufruct, and Mere Possession in the Hanafi School

Under the Hanafi view in your textbook, a simple loan for use is associated with usufruct, not merely possession.

A simple loan here means ‘āriyah: the owner allows another person to use an asset without payment, while ownership of the physical asset remains with the owner.

1. Why Is a Simple Loan Usufruct?

Suppose Ali tells Ahmad:

“You may use my bicycle for one week.”

Ali has not sold the bicycle.

So:

Ali → owns the bicycle

But Ali has given Ahmad a legal right to:

ride and benefit from the bicycle for one week

That right to use is the usufruct.

Under the Hanafi position stated in your passage:

The right to use property is treated as ownership of its usufruct.

Therefore:

Simple loan (‘āriyah)

↓

legal right to use

↓

ownership/right of usufruct under the Hanafi approach

So Ahmad has more than mere physical possession.

2. But Ahmad Also Possesses the Bicycle

Yes. Once Ali hands the bicycle to Ahmad, Ahmad normally has both:

Possession → the bicycle is physically under Ahmad’s control.

and

Usufruct → Ahmad has the legal right to ride it.

But these are two different things.

Ahmad’s position

Possession ✅

Usufruct ✅

Ownership of bicycle itself ❌

3. What Would Mere Possession Look Like?

Suppose Ali gives the bicycle to Yusuf and says:

“Please keep this bicycle safely for me while I travel.”

Yusuf physically possesses the bicycle.

But Ali has not given Yusuf permission to ride it.

Therefore:

Yusuf → possession ✅

Yusuf → usufruct ❌

He is only a custodian.

He cannot say:

“Because I have the bicycle, I can ride it.”

So:

Possession tells us who physically holds the asset. Usufruct tells us who legally has the benefit of using it.

4. Simple Loan Compared With Safekeeping

Simple loan

Ali says:

“Use my car for three days.”

Ahmad receives:

possession + legal right to drive

Therefore, under the Hanafi approach:

usufruct exists.

Safekeeping

Ali says:

“Keep my car at your house for three days.”

Ahmad receives:

possession only

He does not receive the right to drive it for himself.

Therefore:

no usufruct merely from possession.

5. What Makes the Difference?

The key is the purpose for which possession was given.

If possession was given so that the person may use and benefit from the asset:

usufruct exists

If possession was given only so that the person may:

• store it,
• protect it,
• repair it,
• transport it,

without personal use:

mere possession exists

6. Example With a Car

Ali owns a car.

Case A — Simple loan

Ali tells Bilal:

“You may use my car for one week.”

Bilal gets:

Car possession

• ●

right to drive it

=

Possession + usufruct

Ali still owns the car itself.

Case B — Mechanic

Ali gives the same car to Hamzah for repairs.

Hamzah gets:

physical possession

But Hamzah cannot use the car for his own holiday.

Therefore:

Possession only

No personal usufruct arises merely because the car is in his workshop.

7. Does the Borrower Own the Usufruct Forever?

No.

His right exists only within the limits of the simple loan.

For example:

“You may use my car for two days.”

means the borrower has the use for:

two days

not permanently.

He must also respect:

• the owner’s conditions,
• the agreed purpose,
• accepted custom,
• Islamic legal rules.

8. Can the Hanafi Borrower Let Someone Else Use It?

According to the Hanafi principle in the passage you provided, the usufruct holder may generally use the benefit himself or transfer its use to another, unless this is prevented:

• expressly by the owner, or
• implicitly by custom or the nature of the arrangement. [1]

Citation [1]: Your passage states that the Hanafis treated the right of use as equivalent to ownership of usufruct and normally allowed the usufruct holder to extract the benefit personally or transfer it, unless the owner or convention prevented this.

Example

Ali says:

“You may borrow my ordinary bicycle for one week.”

Depending on the conditions and custom, Ahmad may have some ability to let another suitable person use it.

But if Ali says:

“Only you may use it,”

then Ahmad must respect that restriction.

9. Easiest Rule to Remember

Simple Loan — ‘Āriyah

“The owner gives me possession so that I may use the asset.”

Therefore:

Possession + right to use = usufruct

Mere Possession

“The owner gives me possession, but not for my own use.”

Therefore:

Possession without right to benefit = no usufruct

One-line Hanafi rule

Under the Hanafi approach, a simple loan creates a legally recognized right of use and therefore usufruct; mere physical holding of the property without a right of personal use is only possession.

Islamic Law of Transaction: Hanafi View of Usufruct and Mere Possession

The Hanafi position needs one very important distinction:

Having a legal right to use property can amount to ownership of usufruct, but merely possessing or holding the property does not automatically mean you own its usufruct.

The source you are studying says that the Hanafis regarded a right to use property as equivalent to ownership of its usufruct. The usufruct holder may personally enjoy that benefit or, generally, transfer it to another person unless the owner or accepted custom restricts transfer. 

1. Hanafi view of usufruct

For the Hanafis, manfa‘ah (usufruct) is the benefit obtained from using an asset.

Examples:

House → living in it

Car → driving it

Land → cultivating it

If Ahmad has a legally recognized right to live in Ali’s house, the Hanafi approach described in your text treats that right of use as ownership of the usufruct. 

So:

Ali → owns house

Ahmad → legally owns/holds its specified usufruct

Ahmad does not own the physical house.

2. A special Hanafi technical point

Classical Hanafi jurists made a distinction between ownership (milk) and māl (property/wealth).

They generally did not classify usufruct as māl in exactly the same way as a physical object, because the benefit comes into existence through use and cannot normally be stored like a physical asset. Nevertheless, Hanafi law recognizes usufruct as capable of being the subject of legal ownership in transactions such as ijarah. 

So do not confuse these statements:

“Usufruct is not a physical māl in the classical Hanafi technical sense.”

with:

“Usufruct cannot be legally owned.”

The second statement would be incorrect.

3. What Is Mere Possession?

Mere possession means that a person physically holds, occupies, or controls property.

In Arabic legal terminology, possession is often discussed through ideas such as yad or qabd.

But:

Physical possession by itself does not prove ownership of the asset or ownership of its usufruct.

Possession answers:

“Who physically has control of the thing?”

Usufruct answers:

“Who has the legal right to use and benefit from it?”

Those are different questions.

4. Example: Mere Possession Without Usufruct

Ali gives his car to a mechanic for repairs.

The mechanic physically possesses the car.

So:

Mechanic → possession ✅

But the mechanic does not thereby obtain:

ownership of car ❌

or

ownership of the driving usufruct ❌

He possesses the car for a specific purpose:

repairing it

He cannot say:

“Because the car is in my workshop, I may drive it for my personal holiday.”

His possession does not create a general legal right to its benefit.

5. Another Example: Custodian

Ali asks Yusuf:

“Please keep my laptop safely while I travel.”

Yusuf physically holds the laptop.

Therefore:

Yusuf has possession.

But Yusuf does not automatically have the legal right to:

• use it for work,
• lend it to someone,
• rent it out,
• sell it.

So:

Possession ≠ usufruct

unless Ali also gives Yusuf a legally recognized right to use it.

6. When Possession and Usufruct Exist Together

Sometimes the same person has both.

Example: Tenant

Ali leases his apartment to Ahmad.

Ahmad receives:

physical possession of apartment

• ●

legal right to live there

So Ahmad has:

Possession + Usufruct

But he still does not own the physical apartment.

So:

Ali → asset ownership

Ahmad → possession + usufruct

7. When There Is Usufruct Without Immediate Possession

It is also possible for someone to have a legal usufruct right before he physically receives the property.

Example

A lease begins today, but the landlord refuses to give the tenant the keys.

The tenant may already have a valid legal entitlement to the benefit under the contract, even though he has not yet obtained physical possession.

The source you are studying makes this particularly clear in the case where one person owns the asset and another owns its usufruct: the property owner must deliver the property to the usufruct owner and may be compelled if he refuses. 

So:

Usufruct right exists

↓

but

physical possession has not yet been delivered

This shows that:

Usufruct and possession are not the same thing.

8. What About a Usurper?

This makes the distinction even clearer.

Suppose Ahmad wrongfully takes Ali’s house.

Ahmad may physically control the house.

So:

Ahmad → possession in fact

But he does not have a lawful right to its usufruct merely because he is occupying it.

Therefore:

Possession ✅

Lawful ownership of usufruct ❌

This is why physical control alone cannot be the test.

9. Simple Loan Example

Now suppose Ali tells Ahmad:

“You may use my bicycle for one week.”

Here Ahmad does not merely hold the bicycle.

He has also been given a legal right to use it.

Under the Hanafi approach described in your text:

right to use

↓

is treated as:

Ownership of usufruct

So Ahmad may have:

possession + usufruct

while Ali remains:

owner of the bicycle itself. 

10. Permission Example

Suppose Ali tells Ahmad:

“You may stay in my house for one month.”

Under the Hanafi approach in your passage, this legally granted right to use can be treated as ownership of usufruct.

So:

Ali → house

Ahmad → right of use/usufruct

This is different from Ahmad simply entering the house or holding the keys without any legal authorization.

11. The Main Test

When you see someone possessing property, ask two separate questions.

Question 1

Does he physically control the property?

If yes:

→ Possession

Then ask:

Question 2

Does he have a legally recognized right to use and benefit from it?

If yes:

→ Usufruct

Therefore:

Possession alone

does not equal:

usufruct

But:

Possession + legal right to use

may mean:

the person possesses the asset and owns/holds its usufruct.

12. Four Easy Situations

Situation 1 — Owner Living in His Own House

Ali owns and lives in his own house.

He has:

asset ownership + usufruct + possession

Situation 2 — Tenant

Ahmad rents Ali’s house and moves in.

Ahmad has:

possession + usufruct

but:

no ownership of physical house

Situation 3 — Mechanic

Mechanic holds Ali’s car for repairs.

Mechanic has:

possession

but ordinarily:

no personal usufruct

Situation 4 — Usurper

Yusuf wrongfully takes Ali’s car.

Yusuf has:

physical possession

but:

no lawful ownership of asset

and

no lawful usufruct merely from possessing it

13. Does Holding the Keys Mean You Have Usufruct?

No.

Holding the keys proves physical access or control, but you must still ask:

Why do you have the keys?

If you are:

tenant → likely possession + usufruct

If you are:

caretaker → possession only

If you are:

mechanic → possession for repairs only

If you stole the keys:

wrongful possession

So physical control does not itself create usufruct.

14. Does Living in the House Automatically Prove Usufruct?

Not necessarily.

A person may physically live there because he is:

• a tenant,
• a guest,
• a borrower,
• a family member with permission,
• an employee,
• or even a wrongful occupier.

The legal characterization depends on why he is entitled to be there.

Under the Hanafi approach, if there is a legally recognized right to use, that right can amount to ownership of usufruct. 

But merely being physically present does not create that right.

15. The Easiest Formula

Ownership of Asset

“The physical thing legally belongs to me.”

Usufruct

“I have the legal right to use and benefit from the thing.”

Possession

“The thing is physically under my control.”

These three can exist separately.

16. Final Example

Ali owns a car.

He leases it to Ahmad for one month.

Ahmad leaves it with Yusuf, a mechanic, for repairs.

Now:

Ali

owns the physical car

Ahmad

owns/holds the one-month usufruct

Yusuf

possesses the car for repairs

So:

Ali → asset ownership

Ahmad → usufruct

Yusuf → possession

This example proves why the three concepts must not be confused.

One-Sentence Rule to Memorize

Under the Hanafi approach, a legally recognized right to use property may amount to ownership of its usufruct, but mere physical possession or control of the property does not by itself create usufruct ownership. 

Islamic Law of Transaction: Personal Usufruct Ownership

1. What Is Personal Usufruct Ownership?

Personal usufruct ownership means that a particular person has the legal right to use and benefit from property, even though that person does not own the physical property itself.

Simple Example

Ali owns a house.

Ahmad has the legal right to live in the house for five years.

So:

Ali → owns the physical house

Ahmad → owns the usufruct for five years

Ahmad does not own the house itself.

He owns the benefit of using it.

2. How Can Someone Obtain Ownership of Usufruct?

The passage explains that personal usufruct may arise through five main methods:

1. Simple loan
2. Lease
3. Waqf
4. Will
5. Permission

We will look at each one separately.

3. Method 1 — Simple Loan

A simple loan of use means that the owner allows another person to use property temporarily without transferring ownership of the physical property.

Example

Ali owns a bicycle.

He tells Ahmad:

“You may use my bicycle for one week.”

Ali remains the owner of the bicycle.

Ahmad receives the right to use it during the agreed period.

So:

Physical bicycle → Ali

Temporary benefit → Ahmad

4. Method 2 — Lease — Ijarah

A lease (ijarah) means that the owner gives another person the right to use and benefit from property for an agreed period, usually in return for payment.

Example

Ali owns an apartment.

He rents it to Ahmad for one year for RM2,000 per month.

During that year:

Ali → owns the apartment

Ahmad → owns the residential usufruct

Ahmad may live in the apartment according to the lease.

But he does not own the apartment itself.

5. Method 3 — Waqf

The original text uses the word mortmain.

The clearer Islamic term is:

Waqf

A waqf is property dedicated for a continuing religious, charitable, family, or social purpose.

The beneficiaries may receive the usufruct of the property even though they do not own the physical property itself.

Example

Ali makes a house a waqf for poor travelers.

The travelers may stay in and benefit from the house according to the purpose of the waqf.

They do not individually own the house.

Instead:

Waqf property → remains dedicated

Travelers → receive the permitted benefit

6. Method 4 — Will — Wasiyyah

A will (wasiyyah) may give someone a right to use property after the owner’s death.

Example

Ali writes:

“After my death, Ahmad may live in my house for ten years.”

Ali dies.

The physical house may pass to Ali’s heirs.

But Ahmad receives the ten-year usufruct.

So:

House → heirs

Ten-year right to live there → Ahmad

This is another example of:

Personal Usufruct Ownership

7. Method 5 — Permission

The passage also includes permission as a way in which a person may obtain a right to use property.

This point is especially important because it connects with the Hanafi view mentioned in Citation [1].

Example

Ali tells Ahmad:

“You may use my house while you are studying in Kuala Lumpur.”

Ahmad now has permission to use the house according to the limits of Ali’s permission.

The legal character of this right depends on the juristic approach being followed.

8. Important Hanafi Rule About Permission and Usufruct

According to the passage, the Hanafi jurists treated the right to use property as equivalent to ownership of its usufruct. [1]

Citation [1]: The Hanafi position stated in the source treats the legally granted right to use property as equivalent to ownership of its usufruct. Therefore, a person who has that usufruct may normally use it himself or transfer the benefit to another person, unless the owner has restricted such transfer either expressly or through accepted custom or convention.

This is very important because it means that, in the Hanafi approach described here:

A valid right of use can itself amount to ownership of usufruct.

9. This Clarifies the Earlier Question About “Mere Permission”

Earlier, we distinguished between:

ownership of usufruct

and

mere permission to use

That distinction is useful in some juristic approaches, especially where a personal permission is treated as weaker than ownership of the benefit.

However, this passage tells us that:

The Hanafi school takes a broader approach.

According to the Hanafi rule mentioned here:

Right to use

may be treated as:

ownership of usufruct

Therefore, we should not say that every permission is automatically “mere permission” with no ownership effect.

The correct answer depends on:

• the madhhab,
• the wording of the permission,
• whether the right is personal,
• whether transfer is restricted,
• and accepted custom.

10. Hanafi Example

Ali tells Ahmad:

“You may live in my house for one year.”

Under the Hanafi approach described in the passage, Ahmad’s right to use the house may be treated as:

Ownership of its usufruct

So:

Ali → owns physical house

Ahmad → owns right of use/usufruct for one year

This does not make Ahmad owner of the house itself.

11. Can the Usufruct Owner Use the Benefit Himself?

Yes.

According to the Hanafi rule in Citation [1], the owner of usufruct may normally extract the benefit personally.

Citation [1]: The source states that the Hanafi usufruct holder may personally make use of the benefit.

Example

Ahmad has the usufruct of Ali’s apartment for one year.

Ahmad may:

live in the apartment himself

because living there is the benefit that he owns.

12. Can the Usufruct Owner Transfer the Benefit to Someone Else?

According to the Hanafi rule stated in the passage:

Generally, yes.

The usufruct owner may normally transfer the usufruct to another person.

But there are important exceptions. [1]

Citation [1]: The Hanafi jurists allowed the usufruct holder to transfer the usufruct to another person unless the transfer was prevented either explicitly by the property owner or implicitly through convention or accepted custom.

13. Example of Transfer

Ali owns a house.

Ahmad owns the usufruct of the house for one year.

If there is no restriction:

Ahmad may potentially allow Yusuf to enjoy that benefit

according to the rules governing the arrangement.

So:

Ali → physical property

Ahmad → usufruct

↓

Ahmad may transfer that benefit

↓

Yusuf → receives use

But this is subject to restrictions.

14. What Is an Explicit Restriction?

Explicit means clearly stated in words.

Example

Ali tells Ahmad:

“You may live in my house for one year, but you may not allow anyone else to occupy it.”

This is an:

Explicit restriction

Ahmad cannot ignore that condition and transfer the usufruct to Yusuf.

So:

Usufruct given

• ●

transfer specifically prohibited

↓

Ahmad may use it himself

but

cannot transfer it contrary to the condition

15. What Is an Implicit Restriction?

Implicit means the restriction is not directly stated but is understood from:

• custom,
• common practice,
• nature of the property,
• circumstances of the agreement.

Example

Ali allows Ahmad to use a small room designed for one student’s personal accommodation.

Even if Ali does not expressly say:

“Do not turn this into accommodation for twenty people,”

ordinary custom and the nature of the property may imply that such use is not allowed.

This is what the passage means by restriction through:

Convention or custom

16. Custom — ‘Urf

A useful term here is:

‘Urf

‘Urf means recognized custom or common practice that Islamic law may consider when interpreting agreements and people’s intentions.

Example

A person rents an ordinary family car.

The agreement does not say:

“Do not use it as a heavy construction vehicle.”

This may already be understood from the nature of the car and normal custom.

So:

custom can place limits on how usufruct may be used or transferred.

17. Very Important Principle

The usufruct holder does not automatically have unlimited freedom.

Even if he owns the usufruct, his rights are limited by:

• the purpose of the arrangement,
• express conditions,
• custom,
• the nature of the property,
• Islamic Law.

Therefore:

Ownership of usufruct is real ownership, but it is ownership within defined limits.

18. Example Using a House

Ali owns a house.

He gives Ahmad the right to use it for one year.

Under the Hanafi approach stated in the passage:

Ali → physical house

Ahmad → usufruct

Ahmad may normally:

• live in it,
• enjoy the agreed use,
• possibly transfer that use to another person,

unless Ali has prohibited transfer or normal custom prevents it. [1]

Citation [1]: The Hanafi rule allows personal enjoyment or transfer of usufruct unless an express or customary restriction applies.

19. Example Where Transfer Is Allowed

Ali leases a normal apartment to Ahmad.

There is no condition prohibiting another person from occupying it, and the new use does not harm the property or exceed the original type of use.

According to the Hanafi principle described:

Ahmad owns the usufruct

↓

may potentially transfer or share the benefit

↓

provided no legal, contractual, or customary restriction prevents it.

20. Example Where Transfer Is Not Allowed

Ali gives Ahmad the right to use a particular house but clearly states:

“This right is only for you personally.”

Then:

Ahmad receives use

but

transfer is expressly prohibited

Therefore Ahmad cannot simply give the same right to Yusuf.

This shows that:

The scope of usufruct depends on how the right was created.

21. The Five Methods in One Flow

PERSONAL USUFRUCT OWNERSHIP

may arise through:

1. Simple Loan

Free temporary use

Example:

borrowing a bicycle.

↓

2. Lease — Ijarah

Use in exchange for rent/payment

Example:

renting an apartment.

↓

3. Waqf

Benefit given through dedicated property

Example:

travelers using a waqf house.

↓

4. Will — Wasiyyah

Benefit begins after someone’s death

Example:

right to live in a house for ten years.

↓

5. Permission

Owner grants another person the right to use

Example:

permission to occupy a house.

22. How Does the Hanafi View Affect These Five Methods?

The Hanafi rule in the passage focuses on the right to use.

If a person legally receives a right to use property:

↓

that right may be treated as:

Ownership of Usufruct

↓

The person may normally:

use it personally

or

transfer it to another

↓

unless:

owner expressly prohibits transfer

OR

custom implies that transfer is prohibited [1]

Citation [1]: This is the specific Hanafi position stated in the footnote of the passage.

23. Direct Questions and Answers

Question 1: What is personal usufruct ownership?

Answer:

It is a legal right belonging to a particular person to use and benefit from property without owning the physical property itself.

Question 2: How can personal usufruct arise?

Answer:

Through five methods mentioned in the passage:

1. simple loan,
2. lease,
3. waqf,
4. will,
5. permission.

Question 3: Does a tenant own the physical property?

Answer: No.

The tenant owns or holds the:

usufruct

while the landlord owns:

the physical property.

Question 4: What is the Hanafi view of a right to use?

Answer:

According to the passage, Hanafi jurists treated a legally granted right to use as equivalent to ownership of usufruct. [1]

Citation [1]: The footnote expressly states this Hanafi position.

Question 5: Can the Hanafi usufruct owner personally use the property?

Answer: Yes.

He may personally extract or enjoy the benefit. [1]

Question 6: Can he transfer the usufruct to someone else?

Answer: Generally yes, according to the Hanafi rule stated here, unless transfer is prevented by:

• an express condition from the property owner, or
• accepted custom or convention. [1]

Question 7: Does owning usufruct mean owning the physical asset?

Answer: No.

Example:

Ali → owns house

Ahmad → owns usufruct

Ahmad may use the house according to his right but does not become owner of the physical house.

24. Important Clarification for Your Notes

Do not memorize this rule:

“Permission can never create ownership of usufruct.”

That would be too broad.

The passage you are studying specifically says that, under the Hanafi approach:

a right to use property may be equivalent to ownership of usufruct. [1]

Therefore, the better rule is:

Whether permission creates mere personal use or ownership of usufruct depends on the juristic approach and the legal nature of the permission.

25. Simplest Memory Rule

Physical Property

“I own the thing itself.”

Personal Usufruct

“I legally own the right to use and benefit from the thing.”

Hanafi Rule

A legally recognized right to use may itself be treated as ownership of usufruct. [1]

And the usufruct holder may normally:

use it himself

or

transfer the benefit

unless:

the owner or accepted custom restricts transfer. [1]