5.10 The Basis upon which the Assessment of the Wage is Established
Hiring is a contract over a benefit in return for a recompense. The first condition for the validity of the contract of hiring is the legal competence of the two contractors, such that each of them has reached the age of maturity. Another condition for its validity is the consent of the two contractors. Moreover the wage should be known, due to the saying of the Prophet (pbuh): “If anyone of you hires a worker, He has to inform Him of his wage”, narrated by Ad-Daraqutni from Ibn Mas’oud. Also due to the Hadith narrated by Ahmed from Aby Sa’id that the Prophet (pbuh) forbade hiring a worker without explaining to Him his wage. However, if the wage was not defined, the hiring would be contracted and valid (legal). In case of dispute over the wage, reference is made to the equivalent wage. So if the wage was not defined at the time of the contract and if the employer and the employee then dispute over the wage, then the equivalent wage is adopted. The equivalent wage is adopted by analogy with the disputed marriage money (Dowry), which is decided by referring it to the equivalent dowry if it was not mentioned before, or if a dispute over the named amount occurred. This is due to what Ahmed narrated that ‘Abdullah ibn Mas’oud (ra) judged in the case of a man who passed away before sleeping with a woman, whom He had married without naming the dowry. He said: “She deserves the dowry of her equivalent woman, and she has to do the Iddah (waiting period for the next marriage) and she deserves to inherit from him.” Ma’qal ibn Sinan Al-Ashja’i said: “The Prophet (pbuh) has judged to Barwa’a, daughter of Washiq one of our people, as you judged.” The meaning of saying that she deserved the dowry of her equivalent women means a dowry identical to the dowry of equivalent women. So Shar’a obliged giving the equivalent dowry to the one whose dowry was not named. The same judgement is given in the case where a dispute occurs over the named dowry. Since the dowry is a recompense in the marriage contract, then recompense of any contract can be measured with it. Thus it is judged by the equivalent recompense in case the recompense was not mentioned in a contract, or in the case of dispute over the named recompense. Therefore, it is judged by the equivalent wage in the hiring, and by the equivalent price in the trading (selling) in the case where the price was not named in the contract, or there was a dispute over the named price. Therefore the equivalent wage resolves the case in a dispute between the employee and the employer over the named wage, and in the case where the wage was not mentioned. So, if the wage was mentioned in the contract then the wage would be the named one. But if it was not mentioned or if a dispute occurred over the named wage, then the equivalent wage would be judged as the wage. Thus, the wage is of two different kinds: A named wage and the equivalent wage. The condition for considering the named wage is its acceptance by the two contractors. So if the two contractors accepted a certain wage, then this wage will be the named one, and the employer would not be obliged to pay more than it, nor would the employee be obliged to take less than it, rather it is the binding legal wage. The equivalent wage is the wage for equivalent work, or of the equivalent worker if the contract of the hiring had been concluded over the benefit of the work. The equivalent wage would be the wage of the equivalent worker only if the hiring contract was stated over the benefit of the hired person.