Sharikat is that a property or a right belongs to more than one person. For example, if some brothers inherit their father's property, then, for as long as they do not divide it, they are partners in that property. Or, for example, two people together buy an automobile or a house or a piece of land. Or it may happen that a group of people together take possession of a piece of land that belongs to no one by reclaiming, say, and restoring a part of a desert or marshland. Furthermore, a partnership is sometimes accidentally forced on someone, like, for example, when the wheat of two farmers accidentally becomes mixed and to separate the wheat of one from the wheat of the other is not possible.
There are two types of partnership existing in Islam, contractual partnership and non-contractual. The examples previously cited were non-contracted partnerships. A contractual partnership is that two people or a group of people by an agreement, compact and contract, form what in English is called a company, such as a trading company, a farming company or an industrial company. Contractual partnerships or companies are subject to many laws which are still studied in jurisprudence. In the Book of Partnerships the laws of profit sharing are also discussed.
The Book of the Partnership of Capital and Labor (mudarabah)
A mudarabah is a kind of contractual partnership, but not a partnership of two or more investors. Rather it is a partnership of capital and labour, meaning that one one or more partners provide the capital for a trading business and one or more partners provide the labour of the actual trading. Firstly the partners must be in concord as to the division of profits, and then the contract of mudarabah is to be executed, or must at least be formed in practice.
The Book of Agricultural Partnerships (mazaro'at and musaqat)
Mazara'at and musaqat are two more types of partnership. They are like mudarabah, which we have just mentioned, in that they are both types of partnerships between capital and labour. The difference is that mudarabah is relevant to trading whereas muzara'at is for farming. The meaning of this is that the owner of land and water makes an agreement with someone else who does the actual farming and they are in concord as to the specified proportion of each party in the division of the profits. Likewise, musaqat is for the affairs of orchards. This means that the owner of fruit trees concludes an agreement with someone else who becomes responsible for all the work involved in looking after those trees, such as watering them and all the other things effective in fruit production, and, according to the specified proportion they agree upon in the actual agreement, both investor and worker take their share of the profits.
Here there is a point that wish to mention, which is that in partnerships between capital and labour, whether mardarabah agreements or mazara'at or musaqat, any kind of harm or loss the capital is subject to is born by the owner of the capital, the investor. And, likewise, there is also no certainty of making a profit on the capital, meaning that it is possible a profit will be returned, and it is possible that a profit will not be returned. The only profit that is returned to the owner of the capital is in accordance to the profit made by the partnerships and to his specified proportion of those profits. Here it is that the financer, just like the worker, might make no profit, and it is even possible that he may lose his capital and even become bankrupt.
In the world of today, however, even in most parts of the Muslim world, bankers put their aims into practice by means of usury and as a result they receive a specified profit in all circumstances, whatever the types of concern they finance. Should one of the concerns that they have financed return a loss instead of a profit, the manager of that concern is absolutely obliged to return the banker's profit, even if he has to sell his house. Likewise, in the system of most of today's world, the financer never goes bankrupt; on the basis of the system of usury the financer has entrusted his capital to the hands of the manager, which the manager has to repay many times over, and whatever happens the banker demands that profit, even if the capital has suffered a misfortune or even been lost.
In Islam, profiting from capital in the form of usury, i.e. the action of lending money and demanding the repayment of the loan whatever the circumstances with an addition of an amount of profit is strictly and severely prohibited .
The Book of Trusts (wadiy'ah)
Wadiy'ah, or trust, means the entrusting of property with someone and making that person one's agent in keeping and safe-guarding it. This in turn creates duties for the trustee and, if the property suffers or is lost, and the trustee has performed and observed those duties, he is not liable.
The Book of Lending (ariyah)
Ariyah is that a person receives the property of a second person in order to benefit from its benefits. Ariyah and wadiy'ah are two types of trusts, but in wadiy'ah the owner entrusts his property to be kept and safe-guarded and without his permission the trustee has no right to make use of it in any way. Ariyah, however, is that the owner from the very beginning gives it to the other for him to use and then return.
The Book of Hire (ijareh)
In Islam there are two types of hire, either it is that a person cedes the benefit of his property to another in return for an amount of money which is called "the money of hire" (mal-ijareh), such as the normal practices of hiring out one's house or car; or it is that a person hires himself and, in the terms of jurisprudence, becomes ajir; which means that he makes an understanding that in return for carrying out a special work, like repairing a pair of shoes, cutting a person's hair, or building his house and so on, he will receive a wage. or payment. Hire is similar to buying and selling in as far as both involve an exchange. The difference is that in buying and selling the exchange is of a thing and money, while in hire the exchange is of the benefit of a thing and money. Hire also has an aspect in common with 'ariyah in that both the hirer and the 'ariyah trustee make use of a benefit, the difference being that the hirer, having paid the price of the hire, is the owner of the benefit, while the 'ariyah trustee is not the owner of the benefit, he only has the right to make use of it.
The Book of Representatives (wakalah)
Sometimes it occurs that one needs to have a representative for those works which demand a contract. Marriage and divorce are good examples, for the contracts of marriage and divorce must be verbally recited in correct and valid Arabic the person who is represented is called the muwakkil and the representative is called the wakil, while the act of respresentation itself is called takwil.
The Book of Endowments and Charity (waqf and sadaqat)
An endowment is that which a person sets aside from his property for a special use. In defining waqf it has been said that it means safe-guarding the original article of waqf, making it untransferrable, while freeing its benefits. About whether an intention of qorbat, of nearness to God, is a condition of waqf or not there is a difference of opinion. The fact that it is included in this section is because Muhaqqiq Hilli did not consider the intention of qorbat to be an essential condition. In any case, there are two types of waqf, general\ waqf, and special waqf. Both these and the commands of charity are discussed in detail.
The Book of Temporary Endowments (sukna and habs)
Sukna and habs are similar to waqf with the difference that in waqf the original property or wealth is guarded forever and there is no longer any possibility of it being someone's property, whereas habs is that a person designates the benefits of his property for a specified period to be spent in a charitable way, and after that period it again becomes his personal property. Sukna however, is that a person designates a dwelling for the use of a poor, deserving person for a period and at the end of that period it becomes exactly the same as the owner's other property .
The Book of Giving (hebat)
One of the effects of ownership is that one has the right to give one's property to others. Giving is of two types: "in exchange" and "not in exchange". Not in Exchange means that in return for one's gift one receives nothing in return. Giving in Exchange, however, means that one receives something in return for one's gift. Something given in exchange is not retrievable, i.e. it cannot be taken back. When something is given not in exchange, however, if it is given between the mahram members of a family, or if the gift itself is lost or broken, it cannot be taken back, otherwise it can, and the giver can nullify the transaction.
The Book of Wagers (sabq and rimayah)
Sabq and rimayah are two forms of betting agreement between the competitors of horse races, camel races or shooting competitions. Sabq and rimayah are forms of gambling, yet, because they are for practicing the martial arts necessary for jihad, they have been counted by Islam as permissable encouragement for the actual participants. Of course, this permission does not extend to other than the participants.
The Book of Wills (wasiyat)
This book is related to the enjoinments that a person wills to be performed after his death regarding his wealth or his children, whose guardian he is. Each person has the right to appoint a person as his executor (wasi) to be the guardian of minors amongst his children after his death; to supervise their education and other affairs. In the same way, each person also has the right to have spent after his death up to a third of his wealth in accordance with the stipulations he makes in his will.
The Book of Marriage (nikah)
First the conditions of the actual contract are discussed, such as the muharam, the people for whom to marry each other is forbidden, such as father and daughter, mother and son, brother and sister, and so on. The two types of marriage are included: permanent and temporary. Disobedience to the husband by the wife and the ill-treating of the wife by the husband and the obligation of the man of the house to economically provide for his wife and children are part of this book. There are a few other issues that are also discussed.
Lesson Six: Unilateral Instigations (iyqa'at)
This part, according to the classification we are following, consists of iyqa'at, which, as has been explained, are the actions in need of a contract, but not of a two sided contract; a unilateral contract is enough. There are fifteen of these:
The Book of Divorce (talaq)
Divorce here means the cancelling of the marriage compact by the husband. Divorce is either ba'in or raj'i. Ba'in is the kind of divorce wherein the man has no right to return to the woman. A raj'i divorce is that in which the man can return. What this means is that for as long as the woman's special period of restraint ('iddah) has not come to an end, the man can return to the woman and thus nullify the divorce. A divorce is a ba'in divorce either because the wife has no 'iddah, like a divorced woman with whom the husband has not had sexual intercourse, or a woman who has reached the age of menopause, or because, even though the woman must keep 'iddah, the nature of the divorce disqualifies the man's right to return, like the third consecutive divorce of that couple, in which case, until she marries someone else who has sexual intercourse with her and then himself dies or divorces her and she keeps another 'iddah, the first husband cannot re-marry her.
It is a condition of divorce firstly that, at the time of the divorce, the woman is clean of her monthly period. Secondly, there must be two just witnesses present when the contract of divorce is recited. Divorce is divinely detested. The Prophet of God tells us :"The most-detested permissable (thing) before God is divorce".
