Fatwa ID: 07481
Answered by: Alimah Sherbhanu Jadwat
Question:
I started a small business in 2000 while my younger brother and his family living in one house together with me. We used our earnings in one pot and spent from that. We separated in 2007 but never discussed or settled my business. since than we’ve been living independently and had no knowledge of any financial matters of each other.
Now after 16 years my brother thinks he’s got share in my business as it was started by joint money.I worked 23 years and established my business while my brother was doing his own work. I was responsible for all the activities and running the business.
At the starting of my business we never had any agreement verbal or in writing of shares. To end this dispute ,I have decided to give my brother his share according to popular custom as ,50% my share as working partner and 50% for investors. As I’m in investor as well so 25% my share and 25% my brothers. Thus it becomes 75% my share and 25 % my brothers.
Is this distribution of shares right ?
Also in reality I share this business with someone else at 50-50 % partnership as we both invested and both full time working. We both share all the responsibilities and liabilities. Me and business partner decided to take half of the wages and thus make some savings to invest in property as a side business. All the income /profits was put back in to property.
Does my brother have share in our property as well or just in the main business which worth almost £400000.00 currently ?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
The partnership cannot be considered as Mudhaaraba as both you and your brother invested capital.
Although you did not make a specific agreement with your brother , you both probably had discussions that you intended investing the money in a business.If he did not specifically tell you that it is a loan , then diyaanatan atleast , there was a tacit agreement of Shirkatul – amwaal or Mushaarakah.
By default the profits will be shared according to the actual profits accrued according to the percentage agreed by both partners at the time of the commencement of the contract.
As far as any losses, each would share in the losses in proportion to the capital investment of each partner.
However it was negligence on you both by not discussing and agreeing upon the ratio of profit-sharing. Since the profit sharing was not discussed at the time of the contract , technically the Mushaarakah contract became faasid / terminated.
When you both parted ways , again it was negligence upon you both not to discuss the issue, and for you to neglect to pay your brother his contribution to the business.
According to Shariah , he is only entitled to the original amount which he gave you. You should make this clear to him. He cannot demand more than that from you as it would be tantamount to ribaa.
However you have further continued to use his money to invest , albeit with no Mushaarakah contract in existence. This was unfair to him. As such , diyanatan and as a gesture of mutual reconciliation , and so that he does not harbour any resentment in his heart , you may pay him a fair percentage according to the profits you made from his money. Do seek his forgiveness for delay in returning his capital. May Allah make sulh between you both.
Only Allah knows best.
Answered by: Alimah Sherbhanu Jadwat
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
References:
ويصح أن يتساويا في المال ويتفاضلا في الربح” وقال زفر والشافعي: لا تجوز لأن التفاضل فيه يؤدي إلى ربح ما لم يضمن، فإن المال إذا كان نصفين والربح أثلاثا فصاحب الزيادة يستحقها بلا ضمان،
إذ الضمان بقدر رأس المال، ولأن الشركة عندهما في الربح للشركة في الأصل، ولهذا يشترطان الخلط، فصار ربح المال بمنزلة نماء الأعيان فيستحق بقدر الملك في الأصل.
ولنا قوله صلى الله عليه وآله وسلم: “الربح على ما شرطا، والوضيعة على قدر المالين” ولم يفصل، ولأن الربح كما يستحق بالمال يستحق بالعمل كما في المضاربة؛ وقد يكون أحدهما أحذق وأهدى وأكثر عملا وأقوى فلا يرضى بالمساواة فمست الحاجة إلى التفاضل،
بخلاف اشتراط جميع الربح لأحدهما لأنه يخرج العقد به من الشركة ومن المضاربة أيضا إلى قرض باشتراطه للعامل أو إلى بضاعة باشتراطه لرب المال،
وهذا العقد يشبه المضاربة من حيث إنه يعمل في مال الشريك، ويشبه الشركة اسما وعملا فإنهما يعملان فعملنا بشبه المضاربة.
وقلنا: يصح اشتراط الربح من غير ضمان ويشبه الشركة حتى لا تبطل باشتراط
الهداية في شرح بداية المبتدي
ص٥١١ /ج٢ دار الفرفور
العبرة في العقود للمقاصد و المعاني لا للالفاظ و المباني
القواعد الفقهية
عزت عبيد الدعاس
Rules and Conditions of Shirkatul Aqd
- b) The rate of profit sharing should be determined. The share of each partner should be identified at the time of the contract. If however the ratio is not determined before hand the contract becomes void ( Fasid).Therefore identifying the profit share is necessary.
Islamic Banking, Dr Muhammad Imran Ashraf Usmani, Darul Ishaat, Karachi
