1. SHIRKAH

2. SHIRKAH

In Islamic commercial law, partnership is known asshirkah . A natural certainty contract.

Shirkahrefers to bothjoint ownership and commercialpartnership, whereasMusharakahrefers to aspecific type of commercial partnership (i.e. shirkah-al-amwal or finance partnership with limited liability).

Undercommercial partnership- the liability is borne by partners (i.e. the legal form of partnership).

3. Types of shirkah

Shirkah al milk

• where there isa joint ownership of two or more personsin 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 .Agroup of individuals share the capital and profit.

4. Shirkah al milk Shirkah al aqd COMMERCIALPARTNERSHIP FINANCE al-amwal WORK al-amal CREDIT- WORTHINESSal-wujooh SHIRKAH JOINTOWNERSHIP COMMERCIALPARTNERSHIP 5. Shirkah al aqd

Shirkah-al-amwal (wealth/finance ) whereall the partnersinvest money as capital into the partnership/ a venture. Similar to howshareholders provide capitalto a corporation through an initial public offering (IPO).

Shirkah-al-amal (work)where the capital in the partnership is thepartners 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, thepartners purchase commodities on creditandsell it for cash . Thus, their capital is their creditworthiness. They have no monetary investment in this partnership.This partnership isbased on goodwill . Theythen share the profits after selling the commodities at the spot price.

6. Shirkah-al-amwal

Al-amwal are divided into:

• 1. Inan

• 2. Mufawadah

• 3. Mudharabah

7. Inan

All partners willcontribute capitalinto the partnership andmay participate in the managementof the business.The partnersliability is limited to the capital contributed by them . They arenot 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 havea limited liability(they arenot liable towards the liability of the other partners ). When profit arise the partners could either share it according to thecapital ratio or any ratio agreedby the partners. Anyloss will be distributed according to thecapital ratio .

8.

EXAMPLE:

Roza and Mona form anInan partnershipwith 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 was1/3to Roza and2/3to Mona?

ii) There is a loss of RM35,000 in the 2 ndyear. The agreed ratio was3:4.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 is1:2and the profit is RM95,000?

9. Mufawadah

All partners will contributeequal capital into the partnership and may participate in the management of the business.

This form of partnership requirescomplete equalityas a condition for its formation.

Thus, the partnersmust contributeequal amount of capital and they areguarantor for each other .

The liability of the partners in this form of partnership isjoint and several liabilities .

In other words, the partners in Mufawadah partnership haveunlimited liability .

They not onlybear their own liabilitybut alsothe liability of the other partners.

The condition ofcomplete equalitymust be strictly observed.

If the condition is violated, then Mufawadah partnership will automatically convert into Inan partnership.

Profit and lossis shared equally .

10. MUDHARABAH 11. Definition

Mudharabahis apartnershipwhere onlyone partner contributes moneyto another for investing it in a commercial enterprise.

The investment comes from thefirst partnerorrabbul-mal(capital provider) and the other party who will take the responsibility of managing the investment is calledmudaribor entrepreneur.

Mudharabah is not loan to the entrepreneur. It iscapital forwardedin a partnership venture.

12. Mudharabah

In this partnership,one party will contribute capital (known as rabb al-maal capital provider) andanother party will run the business (known as mudarib or entrepreneur).

Thecapital provider is not allowed to participatein the management of the business .

A profit from the business it will be shared according to theprofit sharing ratio .If there is loss,the capital provider will absorb the loss.

Theentrepreneurwill loose all the effort and time put into the business.

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

13. Mudharabah

TheHanafiand theHambalischools call this partnership asMudharabah , while theShafieand theMalikischools call itQiradorMuqaradah .

Although the capital providercould not interferein the management of the business, hecould however set conditionsthat must be observed by the mudarib.

14. Types of Mudharabah

Al-Mudharabah Al-Muqayyadah (Restricted Mudharabah):

• Therabb al-malhad spell outspecific 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 themudaribmust comply with. If themudaribfails 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):

• Therabb al-maldoes not specify any condition. Thus, themudaribhas the liberty to conduct the business according to his judgment.

15. Rules in Mudharabah

• 1. Distribution of Profit and Loss

• Thepartnersmustdetermine a profit sharing ratio(PSR) at theinceptionof the contract anddistribute actual profitbased on this ratio. If there isloss,thecapital provider will absorb the loss . The entrepreneurwill loose all the effortandtimeput into the business.

2.Rights of the entreprenuer

• Theentreprenuerasthe active partnerhas the right to transact with the capital provided. Therefore he hasthe right sell and buy goods on credit and follow the customs of trade.

• He also hasthe right to enter into a partnership with a third partyandgive out capital to a third partyon the basis ofanother Mudharabah.

16. Rules in Mudharabah

• Hecan purchase on creditbeyond the capital of Mudharabah. This would result thepartnership to be indebted to a third party .He needs to get theconsent of the capital providerbefore entering into this kind of transaction.

• He maylend the moneyto a third party orextend gift/donationwith the capital of Mudharabah.

17. Application of Mudharabah

Double Mudharabahis likesub-leasingorsub-contracting , where the entrepreneur that received theMudharabah capital,gives this money to another entrepreneur in a second Mudharabah agreement like the following Example 1:

Example 1:

1. Faridgave RM 150,000 toSharifahto start a grocery storeon the basis of Mudharabah.

2.Sharifah however extended this money on anotherMudharabah basis toSumaiyahto run the business.

Sharifah is themudaribin thefirst Mudharabahand becomes therabb al-malin thesecond Mudharabah .This practice is allowable in Shariah and has important implication in the banking industry.

18. Application of Mudharabah

Example 2:

Ar Rajhiis a new Islamic bank that offers its depositors Mudharabah Investment Account (MIA). Depositors could place money in the MIA for different maturities. They wouldagree on a profit sharing ratiowhen placing money in the account.

Thedepositorsare thecapital providerwhileAr Rajhiis theenterpreneur .Thebank would then invest this money(usually in the capital market).

Atmaturity , Ar Rajhi bank would distribute any profit according to the PSR. If there are any lossess, thedepositors would have to absorb it .

19. Application of Mudharabah

Example 3:

The depositor can invest the money inGeneral Investment Account(GIA) orSpecial Investment Account(SIA).

GIA is based on Al-Mudharabah Al-Mutlaqah(Unrestricted Mudharabah) where the depositordoes not have the option to set any conditionto the banks investment policy.

SIA is based on Al-Mudharabah Al-Muqayyadah(Restricted Mudharabah) where thedepositors could set conditionson the banks investment policy.

Due to this factor,SIArequireshigher minimum investment amountand this in turn givesthe SIA depositors the ability to negotiate the PSR with the banks.TheGIAdepositors on the other hand, areoffered standard investment scheme and fixed PSR.

20. Bank Syariah (Shahibul Maal) KEUNTUNGAN BAGI HASIL Mengikutcontribution of capital (nisbah) MODAL NisbahX % NisbahY% SKEMA MUDHARABAH 4 1 2 2 3 3 Pelanggan ( Mudharib) Ansuran/sekaligus Proposal Projek/Usaha Tenaga/Keahlian Modal 100%Pengembalian Modal Pokok 21. Prinsip Distribusi Hasil Usaha

Loss and Profit Sharing,

Profit Sharing,

Revenue Sharing.

22. CONTOH PEMBIAYAAN MUDHARABAH En. Ahmad memiliki gudang perniagaan gula untuk dihantar kebeberapa pasarayadan restoran dengan mendapat hasil RM50,000 sebulan dan berazam untuk menambah modal kepada RM250,000. Untuk meningkatkan volume, usaha hinggamencapai 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) 23. 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: RM75,000sebulan 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.......