Conditions Not Permitted in Qirad

6 Yahya said that Malik said, " The person who puts up the principal must not stipulate that he has a portion of the profit alone without the agent sharing in it, nor must the agent stipulate that he has a portion 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 which is accepted by 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 into the qirad, it becomes hire, and hire is only good when it has known and fixed terms. The agent should not stipulate when he takes the principal that he repay or commission specific persons 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 - 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 for a certain number of years and that it not be taken back 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 back his money. 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 by stipulating that, the investor 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 guarantee 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 the inclusion of a slave to help him provided that the slave stands to gain along with them out of the investment, and when the slave only helps him with the investment, not with anything else."

Qirad in Wares

7 Yahya said that Malik said, " No one should make a qirad loan except in coin because the loan must not be in wares since loaning wares can only be worked in one of two ways: 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 expense 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 it 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."

Hire in Qirad

8 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 wares realize, his way is that. Whatever portion of the hire is not covered by the principal, the agent must pay. 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 onto the investor."

32.8 Overstepping in Qirad

9 Yahya said that Malik spoke about an investor who made a qirad loan to a man who used it and made a profit. Then the man bought a slave-girl with all the profit and he had intercourse with her and she became pregnant by him, and so the capital decreased. Malik said, " If he has money, the price of the slave-girl is taken from his property, and the capital is restored by it. If there is something left over after the money is paid, it is divided between them according to the first qirad. If he cannot pay it, the slave-girl is sold so that the capital is restored from her price."

Malik spoke about an investor who made a qirad loan to a man, and the agent spent more than the amount of the qirad loan when buying goods with it and paid the increase from his own money. Malik said, " The investor has a choice if the goods are sold for a profit or loss or if they are not sold. If he wishes to take the goods, he takes them and pays the agent back what he put in for them. If the agent refuses, the investor is a partner for his share of the price in eiher increase and decrease according to what the agent paid extra for them from himself."

Malik spoke about an agent who took qirad money from a man and then gave it to another man to use as a qirad without the consent of the investor. He said, " The agent is responsible for the property. If it is decreased, he is responsible for the loss. If there is a profit, the investor has his stipulation of the profit and then the agent has his stipulation of what remains of the money."

Malik spoke about an agent who exceeded and borrowed some of the qirad money he had and bought goods for himself with it. Malik said, " If he has a profit, the profit is divided according to the condition between them in the qirad. If he has a loss, he is responsible for the loss.

Malik said about an investor who paid money to a man and the agent borrowed some of the cash and bought goods for himself with it, " The investor of the capital has a choice. If he wishes, he shares with him in the goods according to the qirad, and if he wishes, he frees himself of them, and takes all of the principal back from the agent. That is what is done with someone who oversteps."

32.9 Expenses Permitted in Qirad

10 Yahya said that Malik spoke about an investor who made a qirad loan to man. Malik said, " When the investment is large, the travelling expenses of the agent are taken from it. He can use it to eat and clothe himself in an acceptable fashion according to the size of the investment. If it saves him from trouble he can take a wage from some of the capital if it is large and he cannot support himself. There are certain jobs which an agent or his like are not responsible for, amongst them are collecting debts, transporting the goods, loading up and so forth. He can use the capital to hire someone to do that for him. The agent should not spend from the capital nor clothe himself from it while he resides with his family. It is only permitted for him to have expenses when he travels for the investment. The expenses are taken from the capital. If he is only trading with the property in the city in which he resides, he has no expenses or clothing from the capital."

Malik spoke about an investor who paid qirad money to an agent who went out with it and with his own capital. He said, " The expenses come from the qirad and from his own capital according to their proportions."

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