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In Islamic commercial law, partnership is known as shirkah . A natural certainty contract.
Shirkah refers to both joint ownership and commercial partnership, whereas Musharakah refers to a specific type of commercial partnership (i.e. shirkah-al-amwal or finance partnership with limited liability).
Under commercial partnership - the liability is borne by partners (i.e. the legal form of partnership).
where there is a joint ownership of two or more persons in a particular property. For instance, when two or more persons purchase equipment, the equipment will be jointly owned by both parties. This type of “partnership” is not necessarily meant for business purpose.
Shirkah al ‘aqd
where a partnership is affected by a mutual contract or commonly known as ‘ joint commercial enterprise ’. A group of individuals share the capital and profit.
Shirkah al milk Shirkah al ‘aqd COMMERCIAL PARTNERSHIP FINANCE al-amwal WORK al-a‘mal CREDIT- WORTHINESS al-wujooh SHIRKAH JOINT OWNERSHIP COMMERCIAL PARTNERSHIP
Shirkah-al-amwal (wealth/finance ) where all the partners invest money as capital into the partnership/ a venture. Similar to how shareholders provide capital to a corporation through an initial public offering (IPO).
Shirkah-al-a‘mal (work) where the capital in the partnership is the partners’ skill (i.e. work). The partners would render some services for their customers, and distribute the fee received according to an agreed ratio.
Shirkah-al-wujooh (creditworthiness) . In this type of partnership, the partners purchase commodities on credit and sell it for cash . Thus, their capital is their creditworthiness. They have no monetary investment in this partnership. This partnership is based on goodwill . They then share the profits after selling the commodities at the spot price.
All partners will contribute capital into the partnership and may participate in the management of the business. The partners’ liability is limited to the capital contributed by them . They are not guarantor for the other partners. The amount of capital contributed could vary among partners (i.e. this partnership does not require equal capital).
The partners could contribute any amount of capital and they have a limited liability (they are not liable towards the liability of the other partners ). When profit arise the partners could either share it according to the capital ratio or any ratio agreed by the partners. Any loss will be distributed according to the capital ratio .
The rabb al-mal had spell out specific conditions (for example specifying certain type of business to enter or not to enter, specifying which market to play in or avoid and etc.) that the mudarib must comply with. If the mudarib fails to do so, he would violate the partnership agreement and would have to be liable for any losses that incurs.
The partners must determine a profit sharing ratio (PSR) at the inception of the contract and distribute actual profit based on this ratio. If there is loss, the capital provider will absorb the loss . The entrepreneur will loose all the effort and time put into the business.
2.Rights of the entreprenuer
The entreprenuer as the active partner has the right to transact with the capital provided. Therefore he has the right sell and buy goods on credit and follow the customs of trade.
He also has the right to enter into a partnership with a third party and give out capital to a third party on the basis of another Mudharabah.
He can purchase on credit beyond the capital of Mudharabah. This would result the partnership to be indebted to a third party .He needs to get the consent of the capital provider before entering into this kind of transaction.
He may lend the money to a third party or extend gift/donation with the capital of Mudharabah.
Double Mudharabah is like sub-leasing or sub-contracting , where the entrepreneur that received the Mudharabah capital, gives this money to another entrepreneur in a second Mudharabah agreement like the following Example 1:
1. Farid gave RM 150,000 to Sharifah to start a grocery store on the basis of Mudharabah.
2.Sharifah however extended this money on another Mudharabah basis to Sumaiyah to run the business.
Sharifah is the mudarib in the first Mudharabah and becomes the rabb al-mal in the second Mudharabah . This practice is allowable in Shariah and has important implication in the banking industry.
Ar Rajhi is a new Islamic bank that offers its depositors Mudharabah Investment Account (MIA). Depositors could place money in the MIA for different maturities. They would agree on a profit sharing ratio when placing money in the account.
The depositors are the capital provider while Ar Rajhi is the enterpreneur . The bank would then invest this money (usually in the capital market).
At maturity , Ar Rajhi bank would distribute any profit according to the PSR. If there are any lossess, the depositors would have to absorb it .
The depositor can invest the money in General Investment Account (GIA) or Special Investment Account (SIA).
GIA is based on Al-Mudharabah Al-Mutlaqah (Unrestricted Mudharabah) where the depositor does not have the option to set any condition to the bank’s investment policy.
SIA is based on Al-Mudharabah Al-Muqayyadah (Restricted Mudharabah) where the depositors could set conditions on the bank’s investment policy.
Due to this factor, SIA requires higher minimum investment amount and this in turn gives the SIA depositors the ability to negotiate the PSR with the banks. The GIA depositors on the other hand, are offered standard investment scheme and fixed PSR.
Bank Syariah (Shahibul Maal) KEUNTUNGAN BAGI HASIL Mengikut contribution of capital (nisbah) MODAL Nisbah X % Nisbah Y% SKEMA MUDHARABAH 4 1 2 2 3 3 Pelanggan ( Mudharib) Ansuran/sekaligus Proposal Projek/Usaha Tenaga/Keahlian Modal 100% Pengembalian Modal Pokok
CONTOH PEMBIAYAAN MUDHARABAH En. Ahmad memiliki gudang perniagaan gula untuk dihantar kebeberapa pasaraya dan restoran dengan mendapat hasil RM50,000 sebulan dan berazam untuk menambah modal kepada RM250,000. Untuk meningkatkan volume, usaha hingga mencapai hasil yang diharapkan sebanyak RM75,000 sebulan. Bank Islam telah membantu En. Ahmad untuk menyelesaikan masalah diatas dengan bersetuju untuk memberi pembiayaan Mudharabah (assuming the profit expectation 20% for Bank Islam)
Perhitungan Bank : - Pembiayaan dari Bank : RM.250 juta - Keuntungan diharapkan Bank : 20% x RM250,000 = RM50,000 atau RM600,000 setahun. - Hasil usaha selama 1 thn : RM75,000 sebulan x 12 bln : RM900,000 setahun. - Maka nisbah bagi hasil Bank : RM600,000/ RM900,000 : 66,67% - Nisbah bagi hasil En.Ahmad : 33,33% Lanjutan.......