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Hadith 35194
Either the owner of the
wares says to the borrower, 'Take these wares and sell them. Buy and
sell with the capital realized according to qirad.' The investor
stipulates increase for himself from the sale of his goods and what
relieves him of expenses in selling it. Or else he says, 'Barter with
these goods and sell. When you are through, buy for me the like of my
goods which I gave you. If there is increase, it is between you and
me. 'It may happen that the investor gives the goods to the agent at a
time in which they are in demand and expensive, and then the agent
returns them while they are cheap and he might have bought them for
only a third of the original price or even less than that. The agent
then has a profit of half the amount by which the price of the wares
has decreased as his portion of the profit. Or he might take the wares
at a time when their price is low, and make use of them until he has a
lot of money. Then those wares become expensive and their price rises
when he returns them, so he buys them for all that he has so that all
his work and concern have been in vain. This is an uncertain
transaction and is not good. If, however, that is not known until it
has happened, then the wage an agent in qirad would be paid for
selling that, is looked at and he is given it for his concern. Then
the money is qirad from the day the money became cash and collected as
coin and it is returned as a qirad like that."
Muwatta Malik Book 32, Hadith 7
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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." Muwatta Malik Book 32, Hadith 6
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Yahya said that Malik spoke about a man who made a qirad loan to
a man and he bought wares with it and transported them to a commercial
centre. It was not profitable to sell them and the agent feared a loss
if he sold them, so he hired transport to take them to another city,
and he sold them there and made a loss, and the cost of the hire was
greater than the principal.
Malik said, "If the agent can pay
the cost of the hire from what the capital realized, his way is that.
Whatever portion of the hire is not covered by the principal, the
agent must pay it. The investor is not answerable for any of it. That
is because the investor only ordered him to trade with the principal.
The investor is not answerable for other than the principal. Had the
investor been liable, it would have been an additional loss to him on
top of the principal which he invested. The agent cannot put that on
to the investor." Muwatta Malik Book 32, Hadith 8