The discussion may be divided into three parts: -

First, it is about an asset (in nature) that a person acquires for another by way of service offered voluntarily, not by agency or in consideration of compensation. The issue is whether or not the other person (the recipient) would legitimately keep possession of the asset as his own.

The reply to this question should be made after understanding the connection of that acquisition with the second person, who for some reasons does not acquire the natural asset on his own. It could be because the first person who volunteers to appropriate the property may intend to do so on behalf of the second person for the latter’s subsequent possession and use. Therefore the first person’s possession will itself constitute a connection between the properties with the second person, placing him in the capacity of the beneficiary of the acquisition.

But the reply will be in the negative if there are no basis that could juristically justify delegation of the work - involved in acquiring the natural asset – to a person other than those who do so under waged labour contract or agency agreement. In these cases the possession itself only justifies the ownership by the worker and not by any other person.

So, there is no legitimacy for his ownership by the worker or the agent simply assigning to him the basis of ownership, which is work done by another person. It is both invalid whether the basis is the execution of the process of acquisition and actual possession, or utilization of the assets he acquired. There is no justification for a person to earn any right to a natural asset acquired by another with the latter’s own labour and effort.

As for the first, which constitutes the expression of possession or ownership on the physical aspects, the intended beneficiary has made no efforts to earn the ownership. It is similar with the second basis, in that he himself did not invest any efforts in utilizing the asset.

The second part is when a person empowers another person (an agent) to acquire possession of a natural asset for him. This is similar to that we discussed earlier. The only difference is the formal empowerment. As in the previous arrangement, he does not gain any right to ownership by hiring another person to undertake the task of acquiring the asset. Thus, it is ineffective for the principal to empower another, as a means to acquire ownership of natural assets.

It can be argued that the act of the agent, by virtue of the agency, is derived from the principal’s authority and thus the acquisition by him will be an acquisition by the principal just as a sale by him is deemed to be sale by his principal. The reason for ownership by the principal will thereby become complete.

The reply to this argument is that the act of the agent is attributable to the principal only in legal and conventional matters like buying, selling, gifting, hiring and similar transactions. But it is not applicable in a physical and bodily action, which is certainly attributed to the person who performs it. Thus, a principal can confirm the claim that he has sold his book, if his authorized agent has sold it. But he cannot legally claim that he visited such and such person, even if he had authorized another person to pay visit on his behalf. The visit is attributed to the actual visitor, as it is a bodily act, contrary to act of selling. A sale transaction is a legal matter capable of being delegated to another authorized person.

Acquiring possession of a natural asset is a bodily and physical act similar to visiting, which is not attributable to anyone other than the visitor himself, unlike commercial transactions. On this basis, we hold that the legitimacy of significant legal matters, like sale and similar transactions is established with evidence in conformity with the respective rules. For example, the validity of the owner’s sale is because of the authority he had granted to his agent. It results in the attribution of the selling act by the agent to the principal. This confirms the criterion for the application of the primary proof indicating the validity of the sale without a need for specific legal proof about the authenticity of the agency.

But this is not applicable in non-legal matters. Delegation of authority does not have the same results. Therefore, the validity of delegation to an agent and the attribution of the act of the agent to the principal - as regard legal tradition - needs a specific proof. The primary proof indicating the assignment of authority will not be sufficient.

Since there is no application from the traditions, the principal calls for the disassignation of the tradition of the principal’s act to the act of the proxy (agent) in creational matters unless a specific proof is got up on the devotional reduction from the law giver. But in the field of acquisition and possession, no such proof is established, so the power of attorney is made null and void in such matters.

The third part is related to the hiring of a person by another to acquire a mubah object, as to whether he would become the owner of that obtained by the hired person. There are two side issues related to this. One issue is about when the hirer has a share in the acquisition act such that he can claim his share in the hiree’s work. The other issue is concerning the nature of the acquisition.

As for the first issue, sometimes it may be taken for granted that the hiree is entitled to a share in the acquired asset as if he acts for himself. In some cases, it may be taken for granted that he does that for the hirer in accordance with the terms on which he was hired.

On the first assumption there is no doubt as regards the hirer’s not taking possession of what the hireling acquired because the acquisition done was the hirer’s property, and he could not rely on the hire contract to expect an entitlement to the asset. As for the second supposition from the first side issue, and it is that which the hireling acquires for the hirer in accordance with hire contract, here there is nothing to distinguish it by juridical discussion from the second side issue, it is, about when it concerns the nature of the hire acquisition since there is found nothing in it to imply its being a justification of the hirer’s taking possession of the wealth a hireling acquires, save hire contract. Therefore, if it were admitted about this supposition that the hirer takes possession of what his hireling acquires, then it is admitted only on the basis of the execution of the contract and this basis itself is also established in the second side issue.

Thus, it requires concentration of the supposition, the discussion from the second of the first side issue, and from the second side issue of this point, which is:

Can the hire contract be the cause or reason for the hirer’s right of ownership to the natural asset his agent acquires?

It is juristically obvious that the primary meaning of the hire contract and its real role confers upon the hirer the benefits of the hired property like residing in a hired house and the hirer’s benefit of the hired labour; and the benefit of the hiree is his labour. The status is established similar to that of the benefits of living in the hired house.

This would mean, regarding the subject under discussion, that the hirer is entitled to the output from the work of the hiree, that is, the acquisition of the benefits established thereby. As for the acquired object that is the wealth (material) acquired - if that is what is to be taken possession of to be owned by the hirer, then this is not directly the meaning of the hire contract. On the contrary, it is invariably the result of his taking possession of the acquisition, just as when we supposed that the right to the possession of the acquisition is inseparable juristically from the right to possession of the object (acquired).

Thus, it becomes incumbent on us to discuss this aspect juristically so as to see as to whether the right to possession of the acquisition is a cause or is inseparable from the right of possession over the goods acquired.

At the juristic level there are several matters for which it is possible to rely on for the justification of this reasoning about the hirer’s taking possession of the hiree’s acquisition. Here are a few:

First, what is well known from the book al-Jawahir and from other books that the acquired asset is the result of acquisition by the hiree, whose work the hirer is entitled to. This is in accordance with the principle that he who owns the principal object also owns its offshoot or product.

This proof is in between these two explanations:

One is that the asset obtained is the product of something that belongs to the hirer, like the fruit of a tree. Just as the owner of the tree becomes owner of its fruit on account of his ownership of the tree, he will become the owner of the woods harvested from the forest by the worker he hires on account of his ownership of the work executed by his worker.

The other is that work (to acquire natural assets) is like tailoring work. Therefore, just as the product of the tailoring work is owned by the hirer of the tailor, so is the outcome of the work involved in acquiring a natural asset.

The first explanation is incorrect. It is obvious that the attribution of the acquired property to the worker is different from that of fruit to the tree. The fruit is the natural product of the tree. As for the wood harvested, it is not the product of the acquisition work. The outcome of the work is controlled felling of trees, not the wood itself. The argument only indicates the fact that one who owns an object also owns its product like the fruits of the trees and the eggs of hens that he owns. As for the product in the metaphorical sense like that applied to the wood harvested, it is not a basis for ownership by the hirer just because he ‘owns’ the work involved in acquiring it.

As for the second explanation, it could be argued that the output of tailoring work is not owned by the tailor’s paymaster. Thus if a person engages a tailor to make him a shirt from a piece of woollen cloth, he does not own the tailor’s work that transform the cloth into a shirt. He instead becomes the owner of shirt because of his ownership of the cloth that was established before the contract, as ownership of the material is, in law, an outright ownership of all the shapes and forms that occur thereto because shapes and forms have no independent ownership.

Therefore, if we suppose that the piece cloth does not belong to the hirer but to someone else for whom he is permitted to have the right of its disposal, the hirer was not in a position to own the garment shape on account of the hire-contract. This means that the product of the work of the tailor – the transformation of shape of the cloth - may be owned by the hirer only if the work was performed on a material that belonged to him prior to the hire contract. However, if the woolen cloth was not owned by him before the hire contract, and instead was a public property free to all (one of the mubahat), the deduction by analogy with the product of tailoring is invalid because of the difference.

The second argument that can be put forward is that the product of the work - that is the transformed shape resulting from tailoring work - is not the wool itself but ownership legally derived from the acquisition. The ownership of natural assets gained in the case of acquisition work is equivalent to the transformed shape that result from the tailoring work. Thus, if the analogy of acquisition with the tailoring became obscured, and if we disregarded the first objection, that would result in the hirer taking possession of the ownership of the wool, not the wool itself and this has no meaning.

Second: if the acquisition of the hireling was owned by property of the hirer, then it is in fact his acquisition. The hirer owns the wool acquired in the capacity of its acquirer by the very acquisition of his hireling.

Therefore, our objection to this standpoint is:

First: the hirer’s ownership of the hiree’s work fulfils the attribution of the acquisition to the hirer with the attribution of ownership, not in terms of the attribution of the act (work) to the actor (worker). So that the hirer becomes the acquirer by the acquisition of the hired; nor is it the preparatory cause of an individual’s right to the possession of a property (goods) but it is a cause of his being its acquirer of it and not his being the owner of his acquisition.

Second: if we acknowledge the attribution of the act itself – the acquisition – to the hirer on account of his ownership, even then it would not be helpful, because the proof of right of possession by acquisition is not a verbal proof so as to hold to it by its application. Rather it is non-verbal (mental) proof limited to the extent of certainty.

As for the claim of consensus that the hirer owns what his worker acquires, it is not an unsound claim; and if we acknowledge this, the abovementioned consensus will not be sufficient to establish the ownership in the matter under discussion, for it is probable that the reliance of the many of the acquiesces in the above mentioned consensus is on their basis of conviction that the rules of the hire-contract demand that from their belief about the correlation between the ownership of the acquisition and the object of the acquisition. As we do not admit this basis, with regard to us, it will not be submissively imitative consensus (we do not join with those who are unanimous about it).

Third: that the local customary practice in the past is established based on the hirer’s right to possession of whatever asset the hired worker obtains.

It is not possible for one to say that according to us, during the era the Shari’ah was being developed, the custom was not adequately known and practised to such a degree that its diffusion (into the social culture) could enable us to determines whether it had been sanctioned or restricted.

However, if we admit this customary practice and its sound reasoning, it only proves in respect of the inclusion of familiar customary practice because the proof is verbal. Thus, the reasoning with it is acceptable only when the hired worker intends that acquired asset for the hirer’s possession. It would not be applicable if there were no such intention. For this form will not be a sure thing decisively from the customary practice.

Fourth: the claim of the proof of generalities and the applications of the soundness of the hiring to the wanted and that because it proves the soundness of the hire conformably with the matter under discussion and proves necessarily the hire’s right to the possession of what the hireling acquires or else the hiring will be a bootless absurdity yielding no profit to the hirer, and so it would be, on account of it, null and void. Hence, the validity of hiring is inseparable from the hirer’s right of ownership of the property acquired.

This may be disputed as follows:

First, the hirer’s right to profit from the work of the hiree is not limited to the possession of the acquired asset. Rather, it may not be connected with the objective of the customary practice, the very acquisition itself and the harvested wood. So, the hire (contract) is not absurd in any case.

Second, if we admit the hire (contract) as absurd, and an absurd hire (contract) is specifically or definitively inadmissible as evidence for the soundness of the hire, it is thus not correct to hold fast of those evidence for establishing its validity, apart from establishing of the right of the hirer over the acquired assets because it is holding fast to the general or absolute with the substitutive judicial error.

Add to this, the possibility of raising doubt as to the finding of the application of the proofs of hire, because in the reported sound traditions (akhbar) there is nothing, which is in harmony with the reality of the statement with an absolute saying to hold fast their application. The verse of the holy Qur’an: “fulfil your contracts” (5:1) implies obligation not soundness, neither in conformity nor by necessity, and the saying of the holy Qur’an: “except that it be a commercial transaction carried out by mutual agreement” (4:29), is pertinent to trade, an evidence of buying and selling, and includes general contracts that result in entitlement to ownership.

Fifth: It is a saying of al-Imam as-Sadiq (a.s.), in which he says: “One who hires himself out prohibits to himself his means of livelihood (rizq).” This indicates that the hirer becomes the owner of what his hiree acquires; otherwise this saying will not be correct in general and would not apply to one who hires himself out. Hence, the application of the text and its inclusion of every hiree imply that it is the hirer - not the hiree – who becomes the owner of the acquired goods.

Besides that, it can also be argued that the text is of questionable authenticity as the tradition’s chain of narration is unsound. As far as I know the whole chain is weak. So it cannot be relied upon. In light of these arguments, we know that the ownership of the hirer over the assets his hiree acquires is not a valid.