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The Financial markets and the financial industry are witnessing the growth of Islamic
banking and finance. Although an Islamic banking and finance is a relatively new
force in the world of banking but it surely is a force to reckon with. Especially after
the recent financial doom which slumped markets world-wide and triggered the global
and have been less affected compared to the conventional financial institutions
because of the prohibitions on excessive leverage. The growth, in both size and in
diversity in the Islamic finance industry has been especially robust over the past few
percent annually. Apart from its traditional strong hold in the Middle Eastern
countries, it has spread its wings to Western countries as well. Islamic finance has a
significant presence in Europe and England is touted to be the Islamic finance hub of
the western world. Many leading and popular international banks have established
Islamic banking ‘units’ or ‘windows’ to provide financial services and products that
conform to shariah.
There are various modes of financing in Islamic finance and Mudharabah and
Musharakah fall within this ambit. They are essential modes of financing and are very
widely used by Islamic banking and financial institutions. It goes without saying that
all the modes of financing adhere to Shariah principles. The 4 basic elements
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Mudarabah financing: The term refers to a form of business contract in which one
party brings capital and the other personal effort. The proportionate share in profit is
determined by mutual agreement. But the loss, if any, is borne only by the owner of
the capital, in which case the entrepreneur gets nothing for his labour. The financier is
adopted by Islamic banks, it is a contract in which all the capital is provided by the
Islamic bank while the business is managed by the other party. The profit is shared in
pre-agreed ratios, and loss, if any, unless caused by negligence or violation of terms
of the contract by the ‘mudarib’, is borne by the Islamic bank. The profits in a
Mudarabah agreement may be shared in any proportion agreed between the parties
beforehand. However, the loss is to be completely borne by the owner of the capital.
In case of loss, the capital owner shall bear the monetary loss and entrepreneur shall
loose the reward of his effort. Mudarabah could be individual effort or a joint one.
Islamic banks practice Mudarabah in both its forms. In case of individual Mudarabah,
company on the basis of profit sharing. The joint Mudarabah may be between the
investors and the bank on a continuing basis whereby the investors keep their funds in
a special fund and share the profits. Many Islamic funds operate on the basis of joint
Mudarabah.
• There are two contracting parties to a Mudarabah financing, i.e. the provider
of funds (rab-al-maal) and the entrepreneur (Mudarib). The latter does not
• Profit is shared between the capital provider and the entrepreneur according to
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mutually consented upon and explicitly stated at the time of contracting (aqad
Mudarabah financing can be divided into two main types, i.e. Restricted
institution may specify certain terms and conditions, for example stipulate a particular
business or particular place for the customer to invest the capital. The customer is
bound by all these restrictions and any violation of these restrictions may make the
customer liable for the loss, if any. This type of Mudarabah financing may be used for
Mudarabah, an Islamic banking institution does not impose any limitation on the
customer/ partner, for example, on the type of business, place of business, methods of
payment from the customers and period of investment. In this case, the Islamic
banking institution will not have any recourse to the customer should the business
incur losses due to the investment policy as there would have been no such policy
prescribed by the Islamic banking institution in the first place. This type of
capital requirements.
The most important element of the Mudarabah contract is the distribution of profit.
At the inception of the Mudarabah contract the contracting parties should agree on a
definite proportion of the actual profit to which each of them is entitled. No particular
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proportion has been prescribed by the shariah; rather, it has been left to their mutual
consent.
They can share the profit in equal proportions, and they can also allocate different
proportions for the rab-al-maal and the mudarib. However, they cannot allocate a
lump sum amount of profit for any party, nor can they determine the share of any
party at a specific rate tied up with the capital. To cite an example, let’s say the rab-al-
mal provides a capital of Rs 800,000. On this capital they cannot agree on a condition
that Rs 60,000 out of the profit, if any, shall be the share of the mudarib, nor can they
say that 15 percent or more of the capital shall be given to rab-al-maal. However,
what can be agreed upon according to shariah is the profit-sharing ratio. Example, any
profit arising out of the business, i.e. 40 percent of the actual profit shall go to the
It is also allowed that different proportions of profit are agreed in different situations.
For example, the rab-al-maal may say to the mudarib at the beginning of the aqad that
if ‘you trade in gold, you will get 50 percent of the profit and if you trade in silver,
you will get 33 percent of the profit, the profit-sharing ratio can be anything in these
circumstances as agreed upon by the contracting parties. Similarly there can be a case
where the rab-al-maal can say to the mudarib that if he does business in his city or
town, he can be entitled to 30 percent of the profit, and if he does it in another town,
It is important to cite, that apart from the agreed proportion of the profit, as
determined in the above manner, the mudarib cannot claim any periodical salary or a
fee or remuneration for the work done during the Mudarabah contract. On the other
hand, if the business has incurred loss in some transactions and has gained profit in
some others, the profit shall be used to offset the loss at the first instance then the
remainder, if any, shall be distributed between the parties according to the agreed
ratio.
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Termination of Mudarabah contract: The contract of the Mudarabah can be
terminated at any time by either of the two parties. The only condition is to give a
notice to the other party. If all assets are in cash form at the time of termination, and
some profit has been earned on the principle amount, it shall be distributed between
the parties according to the agreed ratio. However, if the assets are not in the cash
form, the mudarib shall be given an opportunity to sell or liquidate them, so that the
actual profit may be determined. There is a difference of opinion among the Muslim
jurists about the question whether the contract of Mudarabah can be in effect for a
opinion relates only to the maximum time limit of the Mudharabah. On the question
whether minimum time limit can be fixed by the parties before which Mudarabah
cannot be terminated? No express answer to this question is found in the books of the
Islamic Fiqh, but it appears from the general principles that no such limit can be
fixed, and each party is at liberty to terminate the contract whenever he wishes.
Therefore, if the parties agree, when entering into the Mudarabah, that no party shall
seem to violate any principle of shariah, particularly in the light of the famous hadith
which says:
“All the conditions agreed upon by the Muslims are upheld, except a condition which
or more financiers provide finance for a project. All partners are entitled to a share in
the profits resulting from the project in a ratio which is mutually agreed upon.
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However, the losses, if any, are to be shared exactly in the proportion of capital
proportion. All partners have a right to participate in the management of the project.
However, the partners also have a right to waive the right of participation in favour of
any specific partner or person. This equity financing arrangement is widely regarded
as the purest form of Islamic financing. There are two main forms of Musharakah:
the equity of a project and receives a share of profit on a pro-rata basis. The period of
contract is not specified. So it can continue so long as the parties concerned wish it to
continue. This technique is suitable for financing projects of a longer life where funds
are committed over a long period and gestation period of the project may also be long.
sharing of profit on a pro-rata basis is allowed. It also includes a method by which the
bank keeps on reducing its equity in the project and ultimately transfers the ownership
of the asset to the participants. The contract provides for a payment over and above
the bank share in the profit for the equity of the project held by the bank. That is the
bank gets a dividend on its equity. At the same time the entrepreneur purchases some
of its equity. Thus, the equity held by the bank is progressively reduced. After a
certain time the equity held by the bank shall come to zero and it shall cease to be a
partner. Musharakah form of financing is being increasingly used the Islamic banks to
finance domestic trade, imports and to issue letters of credit. It could also be applied
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The basic tenets of a Musharakah contract:
equal. The contributed capital can be either in the form of cash or assets with
an ascribed value.
• Any losses shall be distributed between the partners according to the capital
the partners must be agreed upon at the time of inception of the contract. If there’s
no mention of the proportion of profit then the contract is not valid according to
shariah point of view. This is because the ratio of profit for each of the partner
must be determined in proportion to the actual profit accrued to the business, and
not in proportion to the capital invested by him. Also, it is not allowed to fix a
lump sum amount for any one of the contracting partners, or any rate of profit tied
up with his investment. Let us take an example to explain the distribution of profit
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and it is agreed between them that A shall be given Rs 20,000 per month as his
share in the profit, and the remaining profit will go to B, this kind of partnership
will be rejected by shariah. Similarly, if they agree between them that ‘A’ will get
shariah. According to shariah, the correct basis for the distribution of profit would
be an agreed percentage of the actual profit accrued to the business. If a lump sum
amount or a certain percentage of the investment has been agreed for any of the
subject to the final settlement at the end of the term, meaning thereby that any
amount so drawn by any partner shall be treated as ‘on account payment’ and it
will later on be adjusted to the actual profit he may deserve at the end of the term.
But in case if no profit is actually earned or is less than anticipated, the amount
made by each contracting partner in the venture. For example, if a partner has
invested 30 percent of the capital, he must suffer 30 percent of the loss, not more,
not less, and any condition to the contrary shall render the contract invalid.
According to Muslim scholars the ratio of the share of a partner in profit-loss both
must conform to the ratio of his investment. But some scholars differ on this
profit-loss ratio of investment. Some scholars assert that the ratio of the profit may
differ from the ratio of investment according to the agreement of the partners, but
the loss must be divided between them exactly in accordance with the ratio of
capital invested by each one of them. It is this principle that has been mentioned in
the famous maxim: ‘profit is based on the agreement of the parties, but loss is
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Termination of Musharakah contract: A Musharakah contract can be
• Every partner in the Musharakah contract has the right to terminate the
notice to this effect, upon which the contract will come to an end. In this
case, if the assets of the Musharakah contract are in cash form, all of them
will be distributed at pro-rata basis between the partners. But if the assets
are not liquidated, then the partners to the contract may agree either on the
partners, as the case may be. In case of dispute between the partners in the
matter where one of the partner seeks liquidation while the other wants the
are in joint ownership of the partners, and a co-owner has a right to seek
partitioned, i.e. Machinery, then they shall be sold and the sale proceeds
shall be distributed.
• If any one of the partners dies during the contract, the contract of
Musharakah with him stands terminated. His heirs in this case, will have
the option either to draw the share of the deceased from the business, or to
• If one of the partners wants termination of the Musharakah, while the other
partner or partners like to continue with the business, this purpose can be
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achieved by mutual agreement. In this case, the partners who want to run
the business may purchase the share of the partner who wants to terminate
Mudarabah and Musharakah does never mean the advancing of money. In Mudarabah
it means to participate in the business and in the case of Musharakah it means sharing
investor/financier must share the loss incurred by the business to the extent of
financing. The partners have the liberty to determine, with mutual consent, the ratio of
profit allocated to each one of them, which may differ from the ratio of investment.
However, in case a partner has expressly excluded himself from the responsibility of
work for the business, he cannot claim more than the ratio of his investment in the
project or business venture. In case of loss suffered in the project each partner must
rejects the concept that a borrower is liable for the repayment of the funds borrowed
borrower’s business. Under the Islamic system, this rejection of interest is replaced
with the concept that the lender is to assume the risks of the borrower’s business and
share in the profits and losses of that business. Interest or riba at the outset is strictly
is because interest as human suffering has shown over centuries, causes much harm to
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wealth to be concentrated within the hands of the few, which is something Islam
clearly forbids.
This is due to the Islamic financial system which views equity capital, which is
productive in a real sense and the social and economic relationships that have to be
built, are not based on debt relationships, but upon equity and participation. Now this
is a very different concept of society from that of the contemporary capitalist society,
which is a society where human beings groan under the burden of debt, and the
sharing society, based on a different model, and in this model, freedom can be
and not in any way subject to a debt situation. Islam encourages Muslims to invest
their money and to become partners in order to share profits and risks in the business
By
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