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04-Musharakah

04-Musharakah

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Published by: Alessandro Del Luce on Feb 11, 2011
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07/25/2013

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1
MusharakahMusharakah
KhairuddinKhairuddinZakariaZakariakhairuddinzakaria@gmail.comkhairuddinzakaria@gmail.com
INTRODUCTIONINTRODUCTION
The Islamic economy promotes equityThe Islamic economy promotes equity--based financing whereby the returns forbased financing whereby the returns forthe investors will be based on the actualthe investors will be based on the actualprofits of the enterprise.profits of the enterprise.
 
2
Definition ofDefinition of
Musyarakah Musyarakah 
The wordThe word
musyarakah musyarakah 
in Arabic is a derivative fromin Arabic is a derivative from
syaraka syaraka 
oror
to shareto share
..
Al Al Shirkah Shirkah 
covers bothcovers both
shirkah shirkah al al mulk mulk 
a joint ownership of a commona joint ownership of a commonproperty as well asproperty as well as
shirkah shirkah al al aqad aqad 
or a partnership in a business as aor a partnership in a business as aconsequence of a mutual contract.consequence of a mutual contract.
The termThe term
musyarakah musyarakah ,,
as it is used in modern financing, is confined toas it is used in modern financing, is confined tothe second type ofthe second type of
al al shirkah shirkah 
only, that is, contractual partnership.only, that is, contractual partnership.
TheTheHanafiHanafischolars definescholars define
musyarakah musyarakah 
as a contract between partnersas a contract between partnerson both capital and profit.on both capital and profit.
TheTheShafiShafiiischolars define it as the confirmation of the rights of two orscholars define it as the confirmation of the rights of two ormore people over a common property.more people over a common property.
HanbaliHanbalischolars, it is the amalgamation of rights and freedom to use.scholars, it is the amalgamation of rights and freedom to use.
MalikisMalikisdefine it as permission to transact where each of the partnersdefine it as permission to transact where each of the partnerspermits the other to transact with the partnership property whilpermits the other to transact with the partnership property while at thee at thesame time retaining his own right to transact with the same propsame time retaining his own right to transact with the same property.erty.
The definition given byThe definition given byHanafisHanafis, however, explains the essence of a, however, explains the essence of amodern partnership as a type of contract.modern partnership as a type of contract.
This definition seems to be more appropriate with reference to tThis definition seems to be more appropriate with reference to thehemodern connotation of the wordmodern connotation of the word
musyarakah musyarakah 
as a partnership whereas a partnership whereprofits are shared as per an agreed ratio whereas the losses areprofits are shared as per an agreed ratio whereas the losses aresharedsharedin proportion to the capital/investment of each partner.in proportion to the capital/investment of each partner.
SOURCES OF LAWSOURCES OF LAW
Quran Quran 
here are several verses usually quoted in support ofhere are several verses usually quoted in support of
musyarakah musyarakah ..
One of them is the verse that encourages mutual assistance or joOne of them is the verse that encourages mutual assistance or joint effortint effortfor good purposes:for good purposes:Help one another in righteousness and pietyHelp one another in righteousness and piety..
(Al (Al Maidah Maidah 
2).2).""
ﻰَ ﻠَ ﻋ اﻮُ ﻧَوﺎَ ﻌَ ﺗ ﻻَو ىَﻮْ ﻘﱠ ﺘﻟاَو ﱢﺮِ ﺒْ ﻟا ﻰَ ﻠَ ﻋ اﻮُ ﻧَوﺎَ ﻌَ ﺗَو ﻰَ ﻠَ ﻋ اﻮُ ﻧَوﺎَ ﻌَ ﺗ ﻻَو ىَﻮْ ﻘﱠ ﺘﻟاَو ﱢﺮِ ﺒْ ﻟا ﻰَ ﻠَ ﻋ اﻮُ ﻧَوﺎَ ﻌَ ﺗَو ِناَوْﺪُ ﻌْ ﻟاَو ِﻢْ ﺛِﻹا ِناَوْﺪُ ﻌْ ﻟاَو ِﻢْ ﺛِﻹا
) ") "
ةﺪﺋﺎﻤﻟاةﺪﺋﺎﻤﻟا
::22.(.(
Musyarakah Musyarakah 
is one of the forms of mutual assistance for the sake of gaininis one of the forms of mutual assistance for the sake of gaininggprofits in business by permitted means, therefore it is encouragprofits in business by permitted means, therefore it is encouraged in Islam.ed in Islam.AnotherAnotherQuranicQuranicverse which is normally quoted to supportverse which is normally quoted to support
musyarakah musyarakah 
isisthe verse that specifically mentions about business partnershipthe verse that specifically mentions about business partnershipininwhich,which,Allah says:Allah says:Truly many are partners in business who wrong eachTruly many are partners in business who wrong eachother: not so do those who believe and work deed of righteousnesother: not so do those who believe and work deed of righteousnesssandandhow few are they?how few are they?–  – (Al(Al--Sad: 24)Sad: 24)
""
َ ﺑ ﻰَ ﻠَ ﻋ ْﻢُ ﮭُ ﻀْ ﻌَ ﺑ ﻲِ ﻐْ ﺒَ ﯿَ ﻟ ِءﺎَ ﻄَ ﻠُ ﺨْ ﻟا َﻦِ ﻣ اًﺮﯿِ ﺜَ ﻛ ﱠنِإَو َ ﺑ ﻰَ ﻠَ ﻋ ْﻢُ ﮭُ ﻀْ ﻌَ ﺑ ﻲِ ﻐْ ﺒَ ﯿَ ﻟ ِءﺎَ ﻄَ ﻠُ ﺨْ ﻟا َﻦِ ﻣ اًﺮﯿِ ﺜَ ﻛ ﱠنِإَو ٌﻞﯿِ ﻠَ ﻗَو ِتﺎَ ﺤِ ﻟﺎﱠ ﺼﻟا اﻮُ ﻠِ ﻤَ ﻋَو اﻮُ ﻨَ ﻣَآ َﻦﯾِﺬﱠ ﻟا ﻻِإ ٍﺾْ ﻌ ٌﻞﯿِ ﻠَ ﻗَو ِتﺎَ ﺤِ ﻟﺎﱠ ﺼﻟا اﻮُ ﻠِ ﻤَ ﻋَو اﻮُ ﻨَ ﻣَآ َﻦﯾِﺬﱠ ﻟا ﻻِإ ٍﺾْ ﻌ ْﻢُ ھ ﺎَ ﻣ ْﻢُ ھ ﺎَ ﻣ
""))
صص
::2424.(.(
The above verse reminds the partners to bind themselves to ethicThe above verse reminds the partners to bind themselves to ethical valuesal valuesin dealing with each other. This verse indirectly indicates thein dealing with each other. This verse indirectly indicates theacknowledgement of theacknowledgement of the
Quran Quran 
for partnerships.for partnerships.
Sunnah Sunnah : :
he Prophet (he Prophet (pbuhpbuh) said that Allah) said that Allahs.w.ts.w.t. said in the form of. said in the form of
Hadith Hadith 
qudsiqudsi::
I am the third in the partners as long as there is no defector.I am the third in the partners as long as there is no defector.If one of theIf one of thepartners does betray the other, I cease to be the partner to thepartners does betray the other, I cease to be the partner to them.m.
ﻲﺑأ ﻦﻋﻲﺑأ ﻦﻋلﺎﻗ ﮫﻌﻓر ةﺮﯾﺮھلﺎﻗ ﮫﻌﻓر ةﺮﯾﺮھ
::
اذﺈﻓ ﮫﺒﺣﺎﺻ ﺎﻤھﺪﺣأ ﻦﺨﯾ ﻢﻟ ﺎﻣ ﻦﯿﻜﯾﺮﺸﻟا ﺚﻟﺎﺛ ﺎﻧأ لﻮﻘﯾ ﻰﻟﺎﻌﺗ ﷲا نإاذﺈﻓ ﮫﺒﺣﺎﺻ ﺎﻤھﺪﺣأ ﻦﺨﯾ ﻢﻟ ﺎﻣ ﻦﯿﻜﯾﺮﺸﻟا ﺚﻟﺎﺛ ﺎﻧأ لﻮﻘﯾ ﻰﻟﺎﻌﺗ ﷲا نإﻦﻣ ﺖﺟﺮﺧ ﮫﻧﺎﺧﻦﻣ ﺖﺟﺮﺧ ﮫﻧﺎﺧﺎﻤﮭﻨﯿﺑﺎﻤﮭﻨﯿﺑ
..
ج ،دواد ﻮﺑأ هاروج ،دواد ﻮﺑأ هارو
22
ص ،ص ،
276276
ﻢﻗر ،ﻢﻗر ،
::33833383..
ThisThis
Hadith Hadith 
indicates that Allah will safeguard the partners and the trade.indicates that Allah will safeguard the partners and the trade.ItIttherefore, encourages the Muslims to enter into partnerships, prtherefore, encourages the Muslims to enter into partnerships, provided thatovided thateach of the parties is honest in respect of the rights of the oteach of the parties is honest in respect of the rights of the other.her.
 
3
ELEMENTS & CONDITIONSELEMENTS & CONDITIONS
The elementsThe elements
ofof
musyarakah musyarakah 
include:include:offer and acceptance, contracting parties (two or more contractioffer and acceptance, contracting parties (two or more contractingngparties), subject matter of the agreement (capital and work).parties), subject matter of the agreement (capital and work).
Condition of subject matter of the contract:Condition of subject matter of the contract:
The subject matter of the contract, which is the capital, has toThe subject matter of the contract, which is the capital, has tofulfilfulfilthethefollowing conditions:following conditions:
1:1:
Capital contributed shall be in cash, gold, silver or their equCapital contributed shall be in cash, gold, silver or their equivalent inivalent invalue. There is no difference among the jurists in this respect.value. There is no difference among the jurists in this respect.
2:2:
Capital may consist of trading assets such as goods, property aCapital may consist of trading assets such as goods, property andndequipment.equipment.
It may also be in the form of intangible rights, such as trademaIt may also be in the form of intangible rights, such as trademark, andrk, andsimilar rights, provided they are valued at their cash equivalensimilar rights, provided they are valued at their cash equivalent accordingt accordingto what the partners have agreed upon.to what the partners have agreed upon.
3:3:
TheTheShafiShafiisisandandMalikisMalikisrequire capital provided by partners to berequire capital provided by partners to becommingled in order that no privilege is given to the share of ecommingled in order that no privilege is given to the share of either ofither ofthem.them.
TheTheHanafisHanafisdo not stipulate this condition provided the capital was indo not stipulate this condition provided the capital was incash, while thecash, while theHanbalisHanbalisdo not require commingling of capital at all.do not require commingling of capital at all.
THE BASIC RULES OFTHE BASIC RULES OF
MUSYARAKAH MUSYARAKAH 
1: Distribution of Profit1: Distribution of Profit
1.1.
The proportion of profit to be distributed between the partnersThe proportion of profit to be distributed between the partnersmust be agreedmust be agreedupon at the time of affecting the contract.upon at the time of affecting the contract.
2.2.
The ratio of profit for each partner must be determined in propoThe ratio of profit for each partner must be determined in proportion to the actualrtion to the actualprofit accrued to the business and not necessarily in proportionprofit accrued to the business and not necessarily in proportionto the capitalto the capitalinvested by him.invested by him.
3.3.
It should not be fixed as a lump sum amount for any one of the pIt should not be fixed as a lump sum amount for any one of the partners or anyartners or anyrate of profit tied up with his investment.rate of profit tied up with his investment.
4.4.
The distribution of profit is whether it is necessary that the rThe distribution of profit is whether it is necessary that the ratio of profit for eachatio of profit for eachpartner to conform to the ratio of capital invested by him?partner to conform to the ratio of capital invested by him?TheTheMalikisMalikisand theand theShafiShafiisisview that it is necessary for the validity ofview that it is necessary for the validity of
musyarakah musyarakah 
that each partner gets the profit exactly in the proportion ofthat each partner gets the profit exactly in the proportion ofhishisinvestment.investment.However, theHowever, theHanbalisHanbalisheld a contrary view by saying that the ratio of profit mayheld a contrary view by saying that the ratio of profit maydiffer from the ratio of investment if it is agreed between thediffer from the ratio of investment if it is agreed between thepartners based onpartners based onfree consent.free consent.TheTheHanafisHanafisopined that the ratio of profit may differ from the ratio of inopined that the ratio of profit may differ from the ratio of investmentvestmentin normal conditions. However, if a partner has put an express cin normal conditions. However, if a partner has put an express condition in theondition in theagreement that he will never work for theagreement that he will never work for the
musyarakah musyarakah 
and will remain a sleepingand will remain a sleepingpartner throughout the term of thepartner throughout the term of the
musyarakah musyarakah 
, then his share of profit cannot, then his share of profit cannotbe more than the ratio of his investment.be more than the ratio of his investment.

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