|
Yahya said that Malik said, "The person who puts up the principal must not
stipulate that he has something of the profit alone without the agent sharing in
it, nor must the agent stipulate that he has something of the profit alone
without the investor sharing. In qirad, there is no sale, no rent, no work, no
advance, and no convenience which one party specifies to himself without the
other party sharing unless one party allows it to the other unconditionally as a
favour and that is alright to both. Neither of the parties should make a
condition over the other which increases him in gold or silver or food over the
other party."
He said, "If any of that enters the qirad, it becomes hire, and hire is only
good with known and fixed terms. The agent should not stipulate when he takes
the principal that he repay or commission anyone with the goods, nor that he
take any of them for himself. When there is a profit, and it is time to separate
the capital, then they divide the profit according to the terms of the contract.
If the principal does not increase or there is a loss, the agent does not have
to make up for what he spent on himself or for the loss. That falls to the
investor from the principal. Qirad is permitted upon whatever terms the investor
and the agent make a mutual agreement, of half the profit, or a third or a
fourth or whatever."
Malik said, "It is not permitted for the agent to stipulate that he use the
qirad money for a certain number of years and that it not be taken from him
during that time."
He said, "It is not good for the investor to stipulate that the qirad money
should not be returned for a certain number of years which are specified,
because the qirad is not for a term. The investor loans it to an agent to use
for him. If it seems proper to either of them to abandon the project and the
money is coin, and nothing has been bought with it, it can be abandoned, and the
investor takes his money back. If it seems proper to the investor to take the
qirad loan back after goods have been purchased with it, he cannot do so until
the buyer has sold the goods and they have become money. If it seems proper to
the agent to return the loan, and it has been turned to goods he cannot do so
until he has sold them. He returns the loan in cash as he took it."
Malik said, "It is not good for the investor to stipulate that the agent pay any
zakat due from his portion of the profit in particular, because the investor by
stipulating that, stipulates fixed increase for himself from the profit because
the portion of zakat he would be liable for by his portion of the profit, is
removed from him.
"It is not permitted for the investor to stipulate to the agent to only buy from
so-and-so, referring to a specific man. That is not permitted because by doing
so he would become his hireling for a wage."
Malik spoke about an investor in qirad who stipulated a guarantee for an amount
of money from the agent, "The investor is not permitted to stipulate conditions
about his principal other than the conditions on which qirad is based or
according to the precedent of the sunna of the Muslims. If the principal is
increased by the condition of guarantee, the investor has increased his share of
the profit because of the position of the guarantee. But the profit is only to
be divided according to what it would have been had the loan been given without
the guarantee. If the principal is destroyed, I do not think that the agent has
a guarantee held against him because the stipulation of guarantees in qirad is
null and void."
Malik spoke about an investor who gave qirad money to a man and the man
stipulated that he would only buy palms or animals with it because he sought to
eat the dates or the offspring of the animals and he kept them for some time to
use for himself. He said, "That is not permitted. It is not the sunna of the
Muslims in qirad unless he buys it and then sells it as other goods are sold."
Malik said, "There is no harm in the agent stipulating on the investor a slave
to help him provided that the slave stands to gain along with him out of the
investment, and when the slave only helps him with the investment, not with
anything else."
Original Version of The Hadith reported
الحديث Reference : Muwatta' Malik مرجع : موطأ مالك
| Online translation (USC-MSA) reference
مرجع الترجمة على الإنترنت : Book 32 الكتاب, Hadith 6 الحديث
|
|
