Chapter 4: Company, Loan, and…

Lesson 36: The Incompetent and Deposit…

A- Laws About the Incompetent Ones (Mahjurin)

One: The Meaning of Incompetent

An incompetent person is legally not entitled to appropriate his property, and others are guardians of his financial affairs

Tow: Who Are Incompetent Ones (Mahjurin)

The incompetent persons are divided into four categories:

1. A child who has not become an adult yet;
2. An insane person;
3. A foolish man (Safīh);
4. A bankrupt (Mufallas);

Three: Laws of the Incompetent

1. When a child reaches puberty, the insane become sane, the foolish grow up, and the bankrupt comes out of prohibition; they have the right to appropriate their property.
2. If a person is sane at times and insane at other times, appropriating his property during his insanity is incorrect (Issue 2402).

Four:  Signs of Maturity

The signs of maturity (the age of legal responsibility) are one of these three signs:

1. When coarse hair grows below the navel and above the private part;
2. Discharge of semen in boys and girls;
3. Completion of fifteen lunar years in boys;
4. Completion of nine lunar years or menstruation in girls (Issue 2399).

B- Safekeeping (Amānah)

One: The Meaning of Deposit and Trust

Deposit (wadīʿah) and trust is a revocable contract in which a person deposits his property to another person to remain in his safe custody free of cost.

Two: Conditions of the Depositor and the Safe Keeper

The depositor and the safe keeper must have the following conditions:

1. They must be adult (Bāligh);
2. They must be sane (ʿĀqil);
3. They must have free will (Ikhtiyār);
4. They must have the intention (Qaṣd);
5. They must not be foolish (Safīh) and bankrupt (Mufallas) (Issue 2476).

Three: Types of Deposit and Trust

1. Islamic trust: the property is placed in the safe keeper’s hands without the owner’s will, for example, trust from a child.
2. Proprietary Trust: The property is placed with the owner’s will, in the safe keeper, such as a deposit.

Four: The Laws of Trusts

1. A person who accepts a deposit from a child or insane without the owner’s permission must return it to its owner. If the deposited item belongs to the child or insane, it must be returned to their guardian (walī)

(Issue 2477).

2. If the trustee has not been negligent in protecting the trust property and the trust is lost, he is not a guarantor (Issue 2483).
3. If the depositor and the safe keeper die or become insane, the deposit agreement becomes void

(Issues 2487 & 2486).

C- Laws of Lending (ʿĀriyah)

One: The Meaning of Lending

Lending (Ārīyah) is a contract in which a person gives his property to another person for temporary use without taking anything in exchange (Issue 2492).

Two: Conditions of the Lender and Borrower

The lender and borrower must have the following conditions:

1. They must be adults (Bāligh);
2. They must be sane (ʿĀqil);
3. They must have free will (Ikhtiyār);
4. They must have the intention (Qaṣd);
5. They must not be foolish (Safīh) (Issue 2496).

Three: Laws of Lending

1. A property whose benefit belongs to a person, such as a home where he has rented it, can be lent to another person. However, if it is stipulated within the rental contract that only the renter himself can use it, he may not loan it to someone else (Issue 2495).
2. If the borrower has not been negligent in protecting the loaned property and has not used it extravagantly, but it perishes, he is not a guarantor (Ḍāmin) unless the loaned item is gold or silver, or a guarantee of the borrower is stipulated, the property must be replaced (Issue 2497).
3. A person who knows a lent property has been usurped must deliver it to the owner, not the lender (Issue 2508).

Question:

Does a disease that leads to death prevent him from using his property?

Answer:

As long as a person is sane, there is no problem and hecan use his property.

Exercises:

1. What are the signs of Maturity in boys and girls?
2. What is the difference between proprietary

and Islamic trusts?

3. What are the conditions of the depositor and the safe keeper?
4. In which case is the borrower not a guarantor?

Lesson 37: Partnership, Mudarabah, and…

A- The Partnership (Shirkah)

One: The Meaning of Partnership

A partnership is formed when two people mix their properties so they cannot be distinguished, then agree to trade with common property and divide profits. It is two types; in some cases, It is valid (ṣaḥīḥ), and in some cases, it is invalid.

Two: Types of Partnerships

1. Partnership in Property: its subject is property; it is correct (Issue 2267).
2. Partnership in action: its subject is the action of the partners; it is not correct (Issue 2268).
3. Participation in credit: its subject is each partner’s credit; it is not correct (Issue 2269).

Three: Conditions of Partners

Those who become partners must meet the following conditions:

1. They must be adults (Bāligh);
2. They must be sane (ʿĀqil);
3. They must have free will (Ikhtiyār);
4. They must have the intention (Qaṣd);
5. They must not be foolish (Safīh) (Issue 2271).

Four: The Law of Partnerships

1. The partnership agreement is invalid if it stipulates that the partner who does not work or works less than the other partners gets a larger share of the profits

(Issue 2271).

2. The dissolution of a partnership with the partners’ consent is correct. It is invalid if it causes significant damage to the partners (Issue 2281).
3. If one of the partners dies or becomes insane or foolish (Safīh), the other partners do not have the right to appropriate the property held in the partnership

(Issue 2282).

B – Muḍārabah (Limited Partnership)

One: The Meaning of Muḍārabah

The muḍārabah is a contract between two individuals in which the owner (Mālik) gives some of his property to a worker (ʿĀmil), who works with the capital; then, the profits are divided between them.

Two: Conditions of the Owner (Mālik) and Worker (ʿĀmil)

The owner (Mālik) and worker (ʿĀmil) must have the following conditions:

1. They must be adults (Bāligh);
2. They must be sane (ʿĀqil);
3. The worker (ʿĀmil) himself must be able to work with the capital;
4. They must have free will (Ikhtiyār);
5. They must have the intention (Qaṣd);
6. The owner (mālik) must not be foolish (Safīh);

Three: The Conditions of the Property in Muḍārabah

1. It must be the sameness of property;
2. It must be in the form of cash;
3. It must be certainty;
4. The amount of the capital must be known.

Four: Laws of Muḍārabah

1. In muḍārabah contracts, the owner’s and worker’s profit shares must be specified, such as one-half or one-third or any other fraction. Muḍārabah is invalid if the share of either of them is not determined.
2. Profits must only be shared between the owner and the worker. Thus, if a condition stipulates that a portion of the profit must be given to a third party, the muḍārabah contract is void (bāṭil).
3. The wages of some works, such as weighing and carrying, packing, and taking the load out, are the responsibility of the work specialist; therefore, Their wages are paid from the capital.
4. If a muḍārabah contract is absolute (non-specific), i.e., without any conditions, the worker can trade any business according to what he thinks is better. If the agreement is conditional, he must act by the conditions, and if he fails to follow these conditions, he is the guarantor of compensation.
5. If the worker is not negligent in safeguarding the property, he is not responsible if the property perishes or is damaged (Ḍāmin). It is his responsibility if he has committed excesses.

C- Usurpation (Ghaṣb)

One: The Meaning of Usurpation (Ghaṣb)

An usurpation occurs when someone unjustly takes the property or right of another person. Usurping property is one of the major sins, so it must be returned to the owner.

Two: The Cases of Usurpation

1. The cases of usurpation occur in two ways:
2. a) The usurping of private properties, such as the usurpation of the house (Issue 2709).
3. b) The usurping of public properties, such as the usurpation of mosque (Issue 2698).
4. Usurping rights:
5. The usurping of private rights, such as the usurpation of mortgage rights (Issue 2700).
6. The usurping of public rights, such as the usurpation of schools (Issue 2698).

Three: The Law of Usurpation

1. The usurper is responsible (Ḍāmin) if he loses a benefit due to his usurpation; for example, if he usurps a house, even if he doesn’t live there, he must pay the rent (Issue 2702).
2. If the usurper’s act increases the price of the usurped property, he is not entitled to wages (Issue 2707).
3. If the usurped property has perished, and it is a non-fungible item such as cows or sheep, the usurper must pay the highest price from the time of usurpation to the payment to the owner (Issue 2711).

Question:

If several people usurp the property, but that property is lost in the hands of one of the usurpers, from which of the usurpers does the owner receive the same or the price of the usurped property?

Answer:

The responsible (Ḍāmin) is the person who perished the property; if he does not give it to him, the owner can receive it from the other usurpers.

Exercises:

1. What are the types of partnerships?
2. What are the conditions of the owner and the worker?
3. What are the types of usurpation?
4. What is the ruling if the price of usurped property changes?

Lesson 38: Muzāra̒ah, Musāqāt, and…

A- Muzāra̒ah (Farming Partnership)

One: The Meaning of Muzāra̒ah

Muzāra̒ah (Farming Partnership) is a contract between a landowner and a farmer under which the landowner gives his land to the farmer to cultivate, and then each receives a specific share of the crops produced.

Two: Conditions of the Landowner and Farmer

The landowner and farmer must have the following conditions:

1. They must be adult (Bāligh);
2. They must be sane (ʿĀqil);
3. They must have free will (Ikhtiyār);
4. They must have the intention (Qaṣd);
5. They must not be foolish (Safīh) and bankrupt (Mufallas) (Issue 2376).

Three: The Conditions of Muzāra̒ah

Muzāra̒ah has some conditions:

1. Muzāra̒ah is a contract between the two parties: the landowner and the farmer. The landowner gives the land to the farmer for farming, and the farmer accepts it.
2. The landowner and the farmer must have a specific share of all crops produced. However, it must not be specified for one of the two parties.
3. The share of each landowner and the farmer must be specified openly, in the form of a half or a third or suchlike of the entire product.
4. The period when the product was acquired from the land must be indicated.
5. Land must be cultivable;
6. Crop type must be specified;
7. The owner must specify the land;
8. Expenses of cultivation must be specified for each of them (Issue 2376).

Four: The Laws of Muzāra̒ah

1. When Muzāri̒aah is over, and the product has not yet been harvested, if the landowner agrees that the crop may remain on the land on prent or without payment, and the farmer is also in agreement, there is no problem. If the land owner disagrees, he may compel the farmer to remove the crop (Issue 2378).
2. Whenever it is impossible to cultivate the land due to an incident, Muzāri̒aah is annulled (Issue 2379).
3. After collecting the product, if the crop’s roots remain in the ground and it is produced again the following year, if it is not stipulated, it belongs to the landowner

(Issue 2384).

B- Musāqāt (Tree Tending Contract)

One: The Meaning of Musāqāt

Musāqāt (tree tending contract) is a contract between the owner of fruit trees and a gardener, the owner places his garden with a gardener for a specified period so that the gardener waters the garden. As a result, each receives a share of the fruits produced by the trees in the garden (Issue 2385).

Two: Conditions of Owner and Gardener

The garden owner and gardener must meet the following conditions:

1. They must be adults (Bāligh);
2. They must be sane (ʿĀqil);
3. They must have free will (Ikhtiyār);
4. They must have the intention (Qaṣd);
5. The owner must not be foolish (Safīh) (Issue 2388).

Three: The Conditions of Musāqāt

There are some conditions in a musāqāt:

1. The beginning and end of the Musāqāt contract must be specified. If the end is to cut fruits, it is valid.
2. The share of each owner and gardener must be specified.
3. The share of each party must be in the form of a half or a third or suchlike of the entire product.
4. Musāqāt contract must be concluded before the crop appears (Issue 2389 & 2390).

Four: The Laws of Musāqāt

1. Musāqāt is an irrevocable contract, so both parties can cancel it with their consent (Issue 2394).
2. If the owner dies, the musāqāt is valid, and his heirs will take over (Issue 2395).

C- Compromise (Ṣulḥ)

One: The Meaning of Ṣulḥ

A Ṣulḥ is when a person compromises with another to make the latter the owner of part of his property or the usufruct of his property or to relinquish a claim or a right of his. In exchange, the other person gives him some of his property or the usufruct of his property or relinquishes a claim or right he has (Issue 2285).

Two: Conditions of One Who Compromises

1. They must be adult (Bāligh);
2. They must be sane (ʿĀqil);
3. They must have free will (Ikhtiyār);
4. They must have the intention (Qaṣd) of making a settlement;
5. The owner must not be foolish (Safīh) (Issue 2286).

Three: Cancelling the Ṣulḥ Contract

Ṣulḥ is one of the necessary, independent, and irrevocable contracts, but it can be canceled in the following cases:

1. It is canceled with the consent of the parties;
2. If they stipulate a right for both or one to cancel the Ṣulḥ contract.
3. If the thing received through settlement is defective (Issue 2284).

D- Luqatah (Found Property)

A property that is lost and a person finds it is called Luqatah (founded property). It has the following rulings:

1. The property lacks a sign identifying its owner, and its price is less than one dirham (12/6 nukhud) of coined silver; he can take the property for himself (Issue 2733).
2. The property has a sign which the owner can be known, and if its price reaches one dirham, it must be announced in a public place for one year; if the owner of the property is not found, it has several forms:
3. a) The finder keeps the property for the owner if it is destroyed; however, if he did not negligently safeguard it and did not transgress, he is not responsible (Ḍāmin).
4. b) He takes it for himself; he is responsible

(Issue 2738).

1. c) He must give it to the poor as alms on behalf of the owner, Sayyid or non-sayyid (Issue 2751).

Exercises:

1. What are the conditions of the owner and farmer in Muzāra̒ah contract?
2. What are three conditions for musāqāt contact?
3. When does the Ṣulḥ contract cancel?

4. What is the ruling if the found property does not have a sign?