SHIRKAH

SHIRKAH 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).

Types of shirkah Shirkah al milk

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.

COMMERCIAL PARTNERSHIP

FINANCEal-amwal

WORKal-a‘mal

CREDIT-WORTHINESS

al-wujooh

SHIRKAH

JOINT OWNERSHIP

COMMERCIAL PARTNERSHIP

Shirkah al milk Shirkah al ‘aqd

Shirkah al ‘aqd 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.

Shirkah-al-amwal Al-amwal are divided into:

1. Inan2. Mufawadah3. Mudharabah

Inan 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.

EXAMPLE:

Roza and Mona form an Inan partnership with capital of RM40,000 and RM60,000 respectively. The profit earned for the first year was RM50,000.

i) How much profit to partners, if the profit sharing ratio agreed was 1/3 to Roza and 2/3 to Mona?

ii) There is a loss of RM35,000 in the 2nd year. The agreed ratio was 3:4. How is the loss distributed among the partners?

iii) If Mona bring an additional capital of RM40,000, what would be their share of profit if the profit ratio is 1:2 and the profit is RM95,000?

Mufawadah All partners will contribute equal capital into the partnership

and may participate in the management of the business. This form of partnership requires complete equality as a

condition for its formation. Thus, the partners must contribute equal amount of

capital and they are guarantor for each other. The liability of the partners in this form of partnership is

joint and several liabilities. In other words, the partners in Mufawadah partnership

have unlimited liability. They not only bear their own liability but also the liability of

the other partners. The condition of complete equality must be strictly

observed. If the condition is violated, then Mufawadah partnership will

automatically convert into Inan partnership. Profit and loss is shared equally.

MUDHARABAH

Definition Mudharabah is a partnership where only one

partner contributes money to another for investing it in a commercial enterprise.

The investment comes from the first partner or rabbul-mal (capital provider) and the other party who will take the responsibility of managing the investment is called ‘mudarib’ or entrepreneur.

Mudharabah is not loan to the entrepreneur. It is capital forwarded in a partnership venture.

Mudharabah In this partnership, one party will contribute capital

(known as rabb al-maal – capital provider) and another party will run the business (known as mudarib or entrepreneur).

The capital provider is not allowed to participate in the management of the business.

A profit from the business it will be shared according to the profit sharing 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.

However if it was proven that the entrepreneur was negligent in conducting the business, he will have to bear the losses.

Mudharabah The Hanafi and the Hambali schools call

this partnership as Mudharabah, while the Shafi’e and the Maliki schools call it Qirad or Muqaradah.

Although the capital provider could not interfere in the management of the business, he could however set conditions that must be observed by the mudarib.

Types of Mudharabah Al-Mudharabah Al-Muqayyadah (Restricted

Mudharabah): 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.

Al-Mudharabah Al-Mutlaqah (Unrestricted Mudharabah):

The rabb al-mal does not specify any condition. Thus, the mudarib has the liberty to conduct the business according to his judgment.

Rules in Mudharabah

1. Distribution of Profit and Loss 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.

Rules in 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.

Application of MudharabahDouble 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:

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.

Application of MudharabahExample 2:

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.

Application of Mudharabah

Example 3: 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 HASILMengikut contribution of capital (nisbah)

MODAL

Nisbah X %

Nisbah Y%

SKEMA MUDHARABAH

4

1

22

3 3

Pelanggan(Mudharib)

Ansuran/sekaligus

Proposal

Projek/Usaha

Tenaga/Keahlian Modal 100%

Pengembalian Modal Pokok

Prinsip Distribusi Hasil Usaha

1. Loss and Profit Sharing,2. Profit Sharing,3. Revenue Sharing.

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%

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