Category: Business Matters
Fatwa#: 40178
Asked Country: Saudi Arabia

Answered Date: Mar 12,2018

Title: Can the return of my capital be guaranteed when I invest in a partnership?

Question

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

 Respected mufti saheb, 

 I have submitted a question on a financial matter many days ago and have nkt yet reveived the reply. I am copying the question below and would be grateful for reply.

 JazakAllah khair.

Abdul Rauf

 Mohamed Shafi (MS) presented a business investment opportunity to me. I was told that MS's friend Ahmed has a real estate venture which has good profit but needs some cash to complete the full venture (which should be done in short period of time). MS told me that Ahmed (venture owner) is looking for some cash for the venture, any investor willing to give the cash as investment (for the short period of time) will get share in the profit of the venture. There was an estimated profit calculated since the venture had aready started and future sale was also almost confirmed.

 

I agreed since MS is also an aalim e deen. MS also told me that the money will not go anywhere, it is his guarantee and if anything goes wrong he will give me the money back from his side. Once I gave the money as investment, MS gave me some documents to sign which, to me, looked like an agreement of loan/interest. I refused to sign this document and  provided alternative agreement format to be clear from any kind of implied interest in the dealing. None of these documents were signed, however MS told me the money was already given for the real estate venture. 

 After few months, MS told me that Ahmed (venture owner) had very bad accident and became mentally handicapped. MS told me that the money I gave was already given to Ahmed the venture owner and he was supposed to return the money with profit but in this meanwhile he became incapacitated due his mental instability. So recovery of my investment seemed rather difficult. However, MS was ready to return my money/investment based on the guarantee he had given to me. Is it lawful for me to take the principal investment back from MS?

Answer

In the Name of Allaah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Ms in reference is an agent (وكيل). He is not obliged to pay you for the losses you encountered in your partnership with Ahmed.

If MS wishes to gift you the money, you may accept it. However, he should not be forced to do so.[1].

 

And Allaah Ta’aala Knows Best

Muhammed Al-Ameen Bin Moulana Ismail Akoo

 

Student, Darul Iftaa

Newcastle; KZN, South Africa

 

Checked and Approved by,
Mufti Ebrahim Desai.
 

 



[1] درر الحكام شرح غرر الأحكام\ج 3-ص 582

ضابط : الوكيل أمين على المال الذي في يده كالمستودع

 

المبسوط للسرخسي\ ج 11-ص 167 (دار المعرفة – بيروت) 

لأن الوكيل أمين فيقبل قوله في براءته

 

 الاختيار لتعليل المختار\كتاب الكفالة

ج  2\ص 166(مطبعة الحلبي - القاهرة (وصورتها دار الكتب العلمية - بيروت، وغيرها)

وشرطها: كون المكفول به مضمونا على الأصيل

 

درر الحكام شرح غرر الأحكام\أركان الكفالة

ج 2\ ص 301 (دار إحياء الكتب العربية)

وَفِي الْفَتَاوَى الْبَزَّازِيَّةِ (وَأَجْمَعُوا أَنَّهُ) أَيْ الْكَفِيلَ (إذَا قَالَ بِطَرِيقِ الْإِخْبَارِ) بِأَنْ يَقُولَ أَنَا كَفِيلٌ بِمَا لِفُلَانٍ عَلَى فُلَانٍ (جَازَ) كَذَا فِي الْخُلَاصَةِ (وَ) لَا (بِالْأَمَانَاتِ) كَالْوَدِيعَةِ وَالْمُسْتَعَارِ وَالْمُسْتَأْجَرِ وَمَالِ الْمُضَارَبَةِ وَالشَّرِكَةِ (وَ) لَا (بِالْمَبِيعِ) قَبْلَ الْقَبْضِ (وَالْمَرْهُونِ) بَعْدَ الْقَبْضِ لِأَنَّ مِنْ شَرْطِ صِحَّةِ الْكَفَالَةِ أَنْ يَكُونَ الْمَكْفُولُ بِهِ مَضْمُونًا عَلَى الْأَصِيلِبِحَيْثُ لَا يُمْكِنُهُ أَنْ يَخْرُجَ عَنْهُ إلَّا بِدَفْعِهِ أَوْ دَفْعِ بَدَلِهِ لِيَتَحَقَّقَ مَعْنَى الضَّمِّ فَيَجِبُ عَلَى الْكَفِيلِ

 

 

 

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