Restudy of Rules of Destruction of the Thing Hired and its Effects through a New Approach to the Article 483 of the Civil Code

Sometimes, after conclusion of a contract of lease, a part or the whole of the thing hired is destroyed before or after delivery [of the thing hired], whether the lessee has made uses of it or not.
The rule of destruction of the whole thing hired for which one of the considerations is gradually received and in the course of time has been disputed by the jurists. Thus, a complete study of this issue is necessary. The jurists as well as the Civil Code are of the opinion that effects of destruction concern future; thus, the contract of lease is cancelled once the thing hired is destroyed and the rent should be paid in proportion to the time remained. In cases in which, a part of the thing hired has been destroyed after delivery and when the lessee has used it for a period of time, according to the Civil Code, he has the right of cancellation of the lease in regard to the remainder of the thing hired. The present article, however, concludes that if the generalities of the Chapter of Options [in Jurisprudence] and arguments for the option of tabaooz al-safqah** are used, and if restrictions of the article 483 are removed and tanqih al-manat*** is used to infer from the article 441 of the Civil Code, it can be inferred that when the lessee is negatively affected by cancellation of the contract, he has the option of tabaooz l-safqah to cancel the contract from the beginning once the thing hired is destroyed.



** A khiyar (option) which gives the buyer the right, if the object of sale is in different parts (i.e., partitioned), either to void the sale and recover the full price paid, or take the remaining parts after deducting a specific amount from the price corresponding to the defect or damage that struck part of the object.


*** The second type of ijtihad, tanqih al-manat, is an intermediary step preceding takhrij al-manat, where the mujtahid, working as a scientist does, confronts a dalil, and hypothesizes that the ground for the rule contained in the dalil is X, Y or Z. He then tests this hypothesis against other data to see if the theory is sound. The mujtahid continues doing this until he determines which of X, Y or Z, or a combination of them, is the actual ground for the rule.