Shirkat-ul-Milk and Shirkat-ul-Aqd
Musharakah is a term frequently referred to in the context of Islamic modes of financing. The connotation of this term is a little limited than the term “shirkah” more commonly used in the Islamic jurisprudence. For the purpose of clarity in the basic concepts, it will be pertinent at the outset to explain the meaning of each term, as distinguished from the other.
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“Shirkah” means “sharing” and in the terminology of Islamic Fiqh, it has been divided into two kinds:
Shirkat-ul-Milk means joint ownership of two or more persons in a particular property. This kind of “shirkah” may come into existence in two different ways: Sometimes it comes into operation at the option of the parties. For example, if two or more persons purchase an equipment, it will be owned jointly by both of them and the relationship between them with regard to that property is called “shirkat-ul-milk.” Here this relationship has come into existence at their own option, as they themselves elected to purchase the equipment jointly.
But there are cases where this kind of “shirkah” comes to operate automatically without any action taken by the parties. For example, after the death of a person, all his heirs inherit his property which comes into their joint ownership as an automatic consequence of the death of that person.
Shirkat-ul-‘Aqd is the second type of Shirkah which means “a partnership effected by a mutual contract”. For the purpose of brevity it may also be translated as “joint commercial enterprise.”
Shirkat-ul-’aqd is further divided into three kinds:
(i) Shirkat-ul-Amwal where all the partners invest some capital into a commercial enterprise.
(ii) Shirkat-ul-A’mal where all the partners jointly undertake to render some services for their customers, and the fee charged from them is distributed among them according to an agreed ratio. For example, if two persons agree to undertake tailoring services for their customers on the condition that the wages so earned will go to a joint pool which shall be distributed between them irrespective of the size of work each partner has actually done, this partnership will be a shirkat-ul-a’mal which is also called Shirkat-ut-taqabbul or Shirkat-us-sana’i’ or Shirkat-ul-abdan.
(iii) The third kind of Shirkat-ul-’aqd is Shirkat-ul-wujooh. Here the partners have no investment at all. All they do is that they purchase the commodities on a deferred price and sell them at spot. The profit so earned is distributed between them at an agreed ratio.
All these modes of “Sharing” or partnership are termed as “shirkah” in the terminology of Islamic Fiqh, while the term “musharakah” is not found in the books of Fiqh. This term (i.e. musharakah) has been introduced recently by those who have written on the subject of Islamic modes of financing and it is normally restricted to a particular type of “Shirkah”, that is, the Shirkat-ul-amwal, where two or more persons invest some of their capital in a joint commercial venture. However, sometimes it includes Shirkat-ul-a’mal also where partnership takes place in the business of services.
It is evident from this discussion that the term “Shirkah” has a much wider sense than the term “musharakah” as is being used today. The latter is limited to the “Shirkat-ul-amwal” only, while the former includes all types of joint ownership and those of partnership. Table 1 will show the different kinds of “Shirkah” and the two kinds which are called “musharakah” in the modern terminology.
Since “musharakah” is more relevant for the purpose of our discussion, and it is almost analogous to “Shirkat-ul-amwal”, we shall now dwell upon it, explaining at the first instance, the traditional concept of this type of Shirkah, then giving a brief account of its application to the concept of financing in the modern context.
Source: Mufti Muhammad Taqi Usmani, An Introduction to Islamic Finance. Republished with permission.
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