Transcript Slide 1

Some issues in the
modern application of alMudharabah
By Assoc. Prof Dr. Azman Mohd Noor
MUDHARABAH
Mudharabah is a contract where the owner of capital entrusts his funds to an
entrepreneur who contributes skills is business and the profits generated is to
be shared between them.
The Prophet, Muhammad (p.b.u.h.) prior to his prophethood had acted as
an agent in a mudharabah (or qirad or muqaradah) contract with an
investment provided by his wife-to-be, Khadijah bint Khuwaylid who
herself was a merchant woman of dignity and wealth. He traveled to
Sham to trade and brought back profits that arose from the sale of the
goods bought using the said investment.
This form of commercial association was popularly practiced in preIslamic trade between the Quraysh and other tribes and continued to
be practiced throughout the early centuries of the Islamic era as a
mainstay of the caravan and long-distance trade.
ESSENTIAL ELEMENTS OF MUDHARABAH
There are six essential elements of Mudharabah
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Owner(s) of capital (rabb al mal)
Entrepreneur (amil or mudharib )
Capital
Business
Profit sharing
Contract
Mudharabah – (1) Owner of Capital & (2) Entrepreneur
Owner(s) of Capital and Entrepreneur must meet the following four
necessary conditions:
•capable of taking responsibility, i.e.
- of sound mind
- reached the age of puberty
- reached majority (18 years old)
•not prohibited from dealing with their properties:
- not declared bankrupts or
- not declared prodigals
•no coercion is exerted on them
•capable of appointing agents and be appointed as agents.
Mudharabah – (3) Capital
(3)
Capital
There are five conditions:
(i) money
(ii) not debt
(iii) specific amount
(iv) from owner(s) of capital only
(v) paid to entrepreneur
Mudharabah – (4) Business and (5) Profit Sharing
4. Business
There are two necessary conditions.
(i) halal
(ii) managed by entrepreneur only
5. Profit Sharing
The two necessary conditions are:
(i) profit shared according to agreement in
fraction, ratio or percentage, not in absolute
amount.
(ii) loss borne by owner(s) of capital only
Mudharabah – (6) Contract
(6)
Contract
There are three necessary conditions, i.e.:
(i) in definite and decisive language. In the
present or past tense, not future tense
nor imperative
(ii) acceptance must agree with offer and
(iii) offer and acceptance made at the one
and the same meeting
ISSUES
Profit Sharing Ratio vs Rate of Return
Indicative Rate vs fixed rate of return
ALCO?
Mudharabah Expenses
What constitutes direct expenses
Early Withdarawal of the Deposits
Mutual Tanazul (mubara’ah/musalahah) among the investors vs organized tanazul
between the mudharib and the investors.
When the mudarib’s money/capital mixed up with rabb al- mal.
ISSUES
Mudharib’s guarantee of capital and profit.
Mudharib’s voluntary guarantee of some of the capital (not specified).
Can contemporary mudharib guarantees because he is rich.
When the mudarib appoints other mudharib.
Protecting Deposits through third party’s guarantee.
Protecting Deposits through third party’s guarantee with fee.
Offering gifts for the depositors.
CHARGING FEE FOR THE EXPENSES OF
MUDHARABAH
Most of the jurists do not allow the Mudharib to charge a fee for services. He or she
is entitled to get a portion of the generated profit according to the agreed upon
profit sharing ratios. Imam al-Shafie has not allowed for the Mudharib to spend
his daily expenses from the mudharabah capital except with the mutual consent
of the capital provider (rab al-mal). This is because since the mudharib was
entitled with a particular proportion from the profits, he has no right to use the
expenses from the mudarabah account. If he does so then it’s considered as
taking additional profits in mudarabah businesses.
However, the Hanafi jurists and Imam Malik restrict this right of the Mudharib to
spend from mudharabah expenses only to a situation where he is on a business
trip outside his own city or spending in course of the business.
EXPENSES
It is stated in the AAOFI standards that a combination between profit sharing and
charging a fee for the Mudharib is against the principle of mudharabah. However
it is allowable to charge fees for other services which are not part of mudharaba
and are executed in an independent contract. In this case the mudharabah
contract continues even though that particular service contract ceases. This is
exactly what happens in takaful as the operator is already charging the
management fee upfront, he is no longer entitled to charge a fee on the
mudharabah fund for conducting business as he will get his reward from the
profit.
AAOFI standard no 8/2
ROR as Commonly practiced by Islamic Banking Industry
Stage 1
Stage 2
Sources
Investors’
share
Financing
Asset
Common
Pool of
Profit
Common
Pool of
investment
Slide No 6
Profit
Distribution
Applications
Investor’s
investment
SHF
Stage 3
Investment
Assets
(managed by Treasury)
Bank’s
share