Laws of Trade
Mufti Abu Muhammad Ali Asghar Attari Madani
Specifying time in Muḍārabah
Q: What do scholars of Islam say regarding the following: I wish to work under the sharia conditions of muḍārabah, taking 400,000 from an investor for three years. Can time be specified in muḍārabah?
اَلْجَوَابُ بِعَوْنِ الْمَلِکِ الْوَھَّابِ اَللّٰھُمَّ ھِدَایَۃَ الْحَقِّ وَالصَّوَابِ
A: In this scenario, mutually agreeing a time of three years when taking 400,000 from an investor by way of muḍārabah and working according to its sharia-stipulated conditions; this is permissible according to sharia itself. When its time period expires, this agreement will cease.
As mentioned in al-Hidāya, Tabyīn al-Ḥaqāiˈq and Durar al-Ḥukkām Sharḥ Majallat al-Aḥkām:
واللفظ للاول:”ان وقت للمضاربة وقتا بعينه، يبطل العقد بمضيه؛ لأنه توكيل فيتوقت بما وقته، والتوقيت مفيد، فإنه تقييد بالزمان فصار كالتقييد بالنوع والمكان
If the owner of the wealth has specified a certain time for muḍārabah, the agreement will come to an end with the passing of that time. This is because it is an act of agency, and agency comes to an end upon its appointed time. This specification of a period is beneficial, as it is a specification of duration. It will be correct, in the way specification of wealth and place is valid.[1]
وَاللہُ اَعْلَمُ عَزَّوَجَلَّ وَ رَسُوْلُہٗ اَعْلَم صلَّی اللہ علیہ واٰلہٖ وسلَّم
2. Purchased items cannot be returned or exchanged
Q: What do scholars of Islam say regarding the following: Some shops display the following statement: “Purchased goods will not be returned or exchanged.” Does a customer have the option of returning items purchased from such shops if they turn out to be faulty or spoiled?
اَلْجَوَابُ بِعَوْنِ الْمَلِکِ الْوَھَّابِ اَللّٰھُمَّ ھِدَایَۃَ الْحَقِّ وَالصَّوَابِ
A: Sharia has given the seller a choice of not accepting the return of a sold item, if returned without reason. Displaying a sign that says, “Purchased goods will not be returned or exchanged,” is correct from one perspective. The original purpose of business is the transfer of ownership. After a sale, the sold item is in the ownership of the customer and the money given in exchange for it becomes the seller’s property, thus completing the transaction. It cannot be annulled upon the mere whim of one party.
If there is genuine defect in the sold item which the seller did not make the buyer aware of, sharia gives the latter the option of returning the item due to this. This is known as khiyār al-Ꜥayb.
In this scenario, hanging up such a sign will not suffice. The seller must take back the item upon the demand of the consumer. If the seller has absolved himself of every defect from a particular item beforehand, it is not binding upon him to take back the item if it turns out to have a fault. Apart from this, there are other scenarios in Islamic teachings when the seller must take back sold items.
In Bahār-i-SharīꜤat:
If there is a defect in the item, it is necessary upon the seller to make this apparent; concealing it is forbidden and a major sin.
If an item is sold under the premise it is free from defect, it may be returned upon a defect becoming apparent. This is khiyār al-Ꜥayb. It is not a condition of this that one says he will return the item if a defect appears. Whether he says so or not, in every case, the buyer has the right of returning the item upon becoming aware of a defect.[2]
It is also mentioned in the same work, “It is a condition for khiyār al-Ꜥayb that the seller does not absolve himself of defects. If he said, ‘I am not responsible for any defect in the product,’ khiyār al-Ꜥayb is not established.”[3]
وَاللہُ اَعْلَمُ عَزَّوَجَلَّ وَ رَسُوْلُہٗ اَعْلَم صلَّی اللہ علیہ واٰلہٖ وسلَّم
3. Paying another’s debt and demanding it from him
Q: What do scholars of Islam say regarding the following: My younger brother owed approximately 150,000, which was quite problematic for him as he did not have the money to repay this. I paid the amount on his behalf. At that time, we all resided together, and I did not intend to take the money back. Yet, now I am in need of money now. Can I demand that money from my younger brother?
اَلْجَوَابُ بِعَوْنِ الْمَلِکِ الْوَھَّابِ اَللّٰھُمَّ ھِدَایَۃَ الْحَقِّ وَالصَّوَابِ
A: If you gave this money from your own volition without your brother asking you to do so, it was a voluntary donation and act of kindness from your part. You cannot demand the return of this money from your younger brother now. If the money was given upon the request of your younger brother, for example your brother said, “Repay this debt on my behalf,” or you said, “I am giving this money on your behalf to repay your debt,” and your brother had accepted that, the money is a debt on your younger brother, and you can demand it from him.
In Al-ꜤUqūd al-Durriyya:
المتبرع لا يرجع على غيره كما لو قضى دين غيره بغير أمر
A donor will not return to others, like when someone pays off another’s debt without that person telling him to do so.[4]
In Minhat al-Khāliq:
من قضى دين غيره بأمره لم يكن متبرعا فله الرجوع على الآمر، وإن لم يشترط الرجوع في الصحيح
Whoever paid another’s debt with their permission is not a donor. So, he has the right to return to the person who asked him for this, even if he did not place the condition of returning. This is according to the most correct opinion.[5]
Imam Aḥmad Razā Khan رَحْمَةُ الـلّٰـهِ عَـلَيْه writes in response to a question:
Whether Sayyid Muhammad Ahsan paid the debt specifically from his own money or took a loan from someone and paid; one brother’s debt was paid by another. It was an act of kindness and there is hope of reward for this good conduct. Yet, there is no right of exchange, as one cannot do an act of kindness and then forcefully demand a return for it. For this reason, it is explicitly stated that whoever pays the debt of another without that person ordering him to do so, will not get it back from them.[6]
وَاللہُ اَعْلَمُ عَزَّوَجَلَّ وَ رَسُوْلُہٗ اَعْلَم صلَّی اللہ علیہ واٰلہٖ وسلَّم
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