Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir
To the questions of the visitors to his Facebook page "Fiqhi"
Answer to a Question
To: Ali Ghaith Abu al-Hassan
Question:
In the name of Allah, the Beneficent, the Merciful,
Peace be upon you... The eminent scholar, Ata Bin Khalil Abu Al-Rashtah, warm greetings, and thereafter:
Regarding Shirkat al-Amlak (Partnership of Ownership), if two people buy a transport car with the intention of making a profit:
1- It is permissible for the two partners to sell the car, and the profit is between them according to the agreement, while the loss is according to the proportion of capital.
2- It is permissible for one of the two partners to rent the share of his partner to work on the car.
3- It is permissible for the two partners to hire a driver for it, and the profit is between them according to the agreement, while the loss is according to the proportion of capital. In this case, it is a Shirkat al-A'yan (Property Partnership).
4- It is permissible for the two partners to agree that one of them works on the car, and the profit is between them according to the agreement, while the loss is according to the proportion of capital. In this case, it is a Shirkat al-Mudarabah.
5- It is permissible for the two partners to agree that both of them work on the car, each one for a day, for example, and the profit is between them according to the agreement, while the loss is according to the proportion of capital. In this case, it is a Shirkat al-A'yan.
6- However: Is it permissible for the two partners for one of them to hire the other to work on the car for a specific amount, then the profits are distributed between them after deducting the specified wage and the car expenses such as fuel, repairs, fines... etc.?
If the answer is: (Yes), then under which partnership does this transaction fall?
In other words: Is it permissible for a partner to be a partner of body (sharik badan) and an employee (ajeer) at the same time?
Knowing that it is permissible to be a partner of capital (sharik mal) and an employee at the same time, such as one who works as an employee in a grocery store opened by his partner, the mudarib.
Answer:
Walaikum Assalam wa Rahmatullahi wa Barakatuh,
Regarding the partnership in a car, this falls under the chapter of Shirkat al-A'yan (Property Partnerships). It does not fall under Shirkat al-'Uqud (Contractual Partnerships); therefore, it is not called Mudarabah, nor is it called Shirkat al-'Inan, nor any other type of contractual partnership. This is because the subject of the partnership is the asset (al-'ayn), i.e., the car, and not the effort. Therefore, it is permissible for one of the two partners to be a driver for the car and receive a wage in addition to his share of the profit. This is done after deducting the wage; meaning, the profits are collected, the wage of the partner-driver is paid from them, and the remaining profits are divided among the partners according to their agreement.
- Therefore, some of the matters you mentioned are not accurate. You say:
("It is permissible for one of the two partners to rent the share of his partner to work on the car")—this statement is inaccurate, because the phrase "renting his partner's share" has no reality in this context. He is a partner in the car and an employee in it as a driver; it is not said that he rented his partner's share...
- And you say: ("the two partners agree that one of them works on the car and the profit is between them according to the agreement and the loss is on the percentage of capital, and it is then a Shirkat al-Mudarabah")—this is also incorrect because the one who works on the car is an employee (ajeer), and he has a wage that he takes before the distribution of profit. The partnership remains Shirkat al-Amlak (A'yan) because the subject of the partnership is the work of the car, and the contract is focused on it...
In conclusion, the partnership in a car is a Shirkat al-A'yan. It is permissible for the company to hire a driver for the car from other than the partners, and it is also permissible for one of the partners to work as a driver for the car for a specific wage that is deducted from the profits before they are divided.
Your brother, Ata Bin Khalil Abu Al-Rashtah
19 Rajab 1438 AH Corresponding to 16/04/2017 CE
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