Hadith 38718

Yahya said that Malik said, "The person who puts up the principalmust not stipulate that he has something of the profit alone withoutthe agent sharing in it, nor must the agent stipulate that he hassomething of the profit alone without the investor sharing. In qirad,there is no sale, no rent, no work, no advance, and no conveniencewhich one party specifies to himself without the other party sharingunless one party allows it to the other unconditionally as a favourand that is alright to both. Neither of the parties should make acondition over the other which increases him in gold or silver or foodover the other party."He said, "If any of that enters theqirad, it becomes hire, and hire is only good with known and fixedterms. The agent should not stipulate when he takes the principal thathe repay or commission anyone with the goods, nor that he take any ofthem for himself. When there is a profit, and it is time to separatethe capital, then they divide the profit according to the terms of thecontract. If the principal does not increase or there is a loss, theagent does not have to make up for what he spent on himself or for theloss. That falls to the investor from the principal. Qirad ispermitted upon whatever terms the investor and the agent make a mutualagreement, of half the profit, or a third or a fourth or whatever."Malik said, "It is not permitted for the agent to stipulatethat he use the qirad money for a certain number of years and that itnot be taken from him during that time."He said, "It is notgood for the investor to stipulate that the qirad money should not bereturned for a certain number of years which are specified, becausethe qirad is not for a term. The investor loans it to an agent to usefor him. If it seems proper to either of them to abandon the projectand the money is coin, and nothing has been bought with it, it can beabandoned, and the investor takes his money back. If it seems properto the investor to take the qirad loan back after goods have beenpurchased with it, he cannot do so until the buyer has sold the goodsand they have become money. If it seems proper to the agent to returnthe loan, and it has been turned to goods he cannot do so until he hassold them. He returns the loan in cash as he took it."Maliksaid, "It is not good for the investor to stipulate that the agent payany zakat due from his portion of the profit in particular, becausethe investor by stipulating that, stipulates fixed increase forhimself from the profit because the portion of zakat he would beliable for by his portion of the profit, is removed from him."It is not permitted for the investor to stipulate to the agent toonly buy from so-and-so, referring to a specific man. That is notpermitted because by doing so he would become his hireling for awage."Malik spoke about an investor in qirad who stipulateda guarantee for an amount of money from the agent, "The investor isnot permitted to stipulate conditions about his principal other thanthe conditions on which qirad is based or according to the precedentof the sunna of the Muslims. If the principal is increased by thecondition of guarantee, the investor has increased his share of theprofit because of the position of the guarantee. But the profit isonly to be divided according to what it would have been had the loanbeen given without the guarantee. If the principal is destroyed, I donot think that the agent has a guarantee held against him because thestipulation of guarantees in qirad is null and void."Malikspoke about an investor who gave qirad money to a man and the manstipulated that he would only buy palms or animals with it because hesought to eat the dates or the offspring of the animals and he keptthem for some time to use for himself. He said, "That is notpermitted. It is not the sunna of the Muslims in qirad unless he buysit and then sells it as other goods are sold."Malik said,"There is no harm in the agent stipulating on the investor a slave tohelp him provided that the slave stands to gain along with him out ofthe investment, and when the slave only helps him with the investment,not with anything else."