137
with joint responsibility, each having his share, whether of profit or loss, and whether much or little. If, in the
balance, the losses exceed the profits, the difference is to be charged against the capital. This arrangement
is not surprising, for while the owner of the capital has suffered a loss in his wealth, the working partner has
lost his time and effort.
This is the law of Islâm concerning partnership contracts. Conversely, were the owner of the capital to be
guaranteed a fixed profit on his capital regardless of the magnitude of the profit or loss, it would be a clear
violation of justice and a bias in favor of capital against investment experience and labor; it would also be
contrary to the realities of investment, which always contain elements of risk. To guarantee to the person
who did not toil or take any risk is the very essence of abominable usury.
The Prophet (s.a.w.s.) forbade the type of partnership on cultivable land which was known as al-muzara‘ah
(share-cropping) (Compiled by Muslim.), in which the contract would give one partner the produce of a
specified area of a farm or a fixed amount of grain such as one or two tons. He prohibited this because such
a transaction is similar to usury or gambling; for if the farm produced less than the specific amount or nothing
at all, one partner would still get his share, while the other would suffer a total loss, which is contrary to
justice.
The explicit hadith invalidating share-cropping because of this condition is, in my opinion, the basis of
consensus among jurists that no partnership is valid which specifies a fixed profit for one partner in every
case, regardless of whether or not the investment was profitable. They say, “Suppose one of the partners
makes a condition that he is to receive a specified amount of money. In case the profit does not exceed that
amount, he would receive the entire profit, and even if there is no profit, he would receive that much; on the
other hand, if the profit is large he will be hurt by the condition of getting only the specified amount. ” (In his
treatise, Al-Islâm wa mushkilatina al-mu‘asirah (Islâm and Contemporary Problems), Dr. Muhammad Yusuf
Musa quotes Sheikh Muhammad ‘Abduh and Sheikh Abdul Wahhab as disagreeing with the jurists
concerning partnership contracts. They argue that this has no basis in the Qur‘ân and the Sunnah. With due
respect to their opinions, I maintain that the analogy to share-cropping is sufficient to apply it to other
partnerships. But Allâh knows best.) This reasoning is in accordance with the spirit of Islâm, which bases all
human affairs on clearly defined principles of justice and fairness.
Partnership among Owners of Capital
Just as it is lawful for the Muslim to use his own wealth for any permissible purpose or to give it to a capable,
experienced person to invest in a joint venture, it is also lawful for him to pool his capital with the capital of
others for investment, trade, or any lawful business ventures.
There are all kinds of activities and projects, some requiring intensive labor, others intensive mental
expenditure, and still others large capital. By themselves individuals may not be able to accomplish much,
but when joined with others, they can achieve many things. Allâh Ta‘ala says,...and help each other in
righteousness and God-consciousness. (5:3 (2)) Any deed which produces good results for the individual or
society, or which removes some evil, is righteousness, and a righteous deed becomes piety if a good
intention is added to it. Islâm is not content with merely allowing such joint endeavors but encourages and
blesses them, promising Allâh’s help in this world and His reward in the Hereafter as long as these
endeavors are within the sphere of what Allâh has made halal, far removed from usury (interest) and from
ambiguity, injustice, fraud, and cheating in any form. In this connection Allâh’s Messenger (s.a.w.s.) said,
Allâh’s hand is over two partners as long as one of them does not cheat the other, but when he cheats his
partner, He withdraws it from both. (Reported by al-Darqutni.) “Allâh’s hand” refers to His help, inspiration,
and blessing. The Prophet (s.a.w.s.) also stated in a hadith quasi that Allâh, the Great and Glorious says, I
make a third with two partners as long as one of them does not cheat the other, but when he cheats him I
depart from them. (Reported by Abû Daoud and by al-Hakim, who calls it sound.)
Razin’s versadds, “and Satan comes.” (Reported by Razi in his Jami‘ah.)
138
Insurance Companies
We now turn to the important relating to present-day companies which issue life insurance and insurance
against hazards and accidents. What is the Islâmic position and ruling concerning such companies?
Before answering this question we must first inquire into the nature of such companies and the nature of the
relationship between the insured and the insurance firm; in other words, is the insured individual a partner of
the firm’s owners? If this is the case, every individual insured by the firm should have a share in its profits or
losses since this is the meaning of a partnership in Islâm.
With regard to insurance against hazards, the insured pays a specified premium during the year. If no
accident of the type specified in the insurance policy occurs to the property (shop, factory, ship, etc.) during
the year, the company keeps the premiums received and nothing is returned to the insured. If, on the other
hand, some calamity occurs, the insured individual is paid the agreed-upon sum. This kind of transaction is
far removed from either trade or partnership.
In relation to life insurance, supposing a person takes out insurance for twenty thousand dollars and dies
soon after paying the first premium, his beneficiaries are then entitled to the entire sum of twenty thousand
dollars. Had this been a business partnership, they would have been entitled only to the amount of the
premium which was paid, plus the profit on it. Again, if the insured person fails to pay his premiums after
having paid a few of them, according to the terms of insurance contracts he will lose all or a great part of
what he has already paid. The least one can say about this is that it is, in the context of the Islâmic legal
system, an invalid condition.
The argument that the two parties, the insured and the insurance firm, enter into this contract willingly in
accordance with their respective self-interest carries no weight; so do the lender and the borrower on
interest and two gamblers. The mutual agreement of the two parties has no validity in a transaction which is
not based on justice and equity, and which is not devoid of any trace of ambiguity or exploitation. Moreover,
since justice, with no harm either to oneself or others, is the ultimate criterion here, a transaction is invalid if
it stipulates that in certain situations one party is to take all, with no benefits guaranteed to the other.
Do Insurance Companies Constitute Cooperatives?
It is clear to us that the relationship between the insured and the insurer does not constitute a partnership.
The question then is, What is the nature of this relationship? Is it a relationship of cooperation? Are
insurance firms to be regarded as cooperatives which are organized by their members to help one another,
each member paying a certain amount as his share?
In order to establish a cooperative system on a sound footing in any group which desires to help its
members in the event of unforeseen calamity, the following conditions must be met in regard to the money
collected:
1.
Every member who pays his allotted share of money pays it as a donation, in the spirit of brotherhood.
From this pool of donations help is given to those who are in need.
2.
If any part of this money is to be invested, it should be invested in halal businesses only.
3.
It is not permitted to the member to donate his share on the condition that he will receive a pre-
determined amount in the event of an unforeseen calamity. Rather, he will be paid an amount which will
compensate his loss or a part of it, depending on the resources of the group, from the pooled monies.
4.
What has been donated is gift from the donor, and taking it back is haram.(Taken from the book, Al-Islâm
wal-manahij al-ishtirakiyyah (Islâm and Socialism), by Muhammad al-Ghazzali, p. 131.)
Dostları ilə paylaş: |