One of the things that is usually required by one of the parties in Mudharabah and Musyarakah is profit sharing with a certain amount, an example is as follows:
Example:
“I will deposit my capital of 30 million with the condition that I get a fixed profit sharing of 10% per month (3 million per month)”
“I as an investor with a value of 10 million dollars ask for a profit sharing of 1 million dollars per year”
And so on.
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Is This Permissible In Sharia?
It is mentioned in the AAOIFI Shariah Standard on Shirkah and Contemporary Shirkah point 3/1/5/7 as follows:
“لا يجوز أن تشتمل شروط الشركة أو أسس توزيع أرباحها على أي نص أو شرط يؤدي إلى احتمال قطع الاشتراك في الربح مثل أن يشترط لأحد الشركاء مبلغ محدد من الربح أو نسبة من رأس المال , فإن وقع بطل الشرط, فإن صح الشرط قبل حصول الربح وزع الربح حسب ما اتفق عليه الشركاء بعد التصحيح و إن لم يصح الشرط قبل حصول الربح فالربح يوزع بقدر حصص الشركاء في رأس المال.
It is not permissible in the terms of the shirkah or the basis of profit sharing to include clauses or conditions that lead to the possibility of interrupting participation in profits, such as stipulating for one of the partners a certain amount of profit or a certain percentage of the capital, if such a condition is signed then the condition is void, if the condition is corrected before the profit is earned, then the profit is divided according to the agreement of the partners after correction, if the condition is not corrected before the profit is earned, then the profit is divided according to the share of capital of the partners.”
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As also mentioned in AAOIFI Shariah Standard on Mudharabah point 8/5 as follows:
إذا شرط أحد الطرفين لنفسه مبلغا مقطوعا, فسدت المضاربة. ”
If one of the parties stipulates a certain amount for himself, then the mudharabah is invalid.”
While mentioned in DSN MUI fatwa no 115/DSN-MUI/IX/2017 on Mudharabah contracts:
1.The ratio of profit sharing must be agreed upon at the time of the contract.
2. The profit sharing ratio as stated in number 2 must not be in the form of a nominal or percentage figure of the business capital.
3. The profit sharing ratio as referred to in number 2 must not use a percentage figure that results in profits only being received by one party; while the other party is not entitled to get the results of the mudharabah business.
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Apa Perbedaan Syariah, Fiqih dan Ushul Fiqih?
Based on the two sharia standards above, it is not allowed to enter into a profit sharing agreement with a certain nominal amount or with a percentage of the capital, this is because the distribution of profit sharing with a certain nominal amount or with a percentage of the capital can prevent other parties in the Mudharabah and Musyarakah contracts from getting a share of the business profits. An example of such a case is as follows:
Examples of Profit Sharing that Can Hinder One Party’s Profits
“Ahmad and Yusuf entered into a business activity under a Mudharabah contract in the sale of lamongan fried chicken. Ahmad as the shahibul mal (capital owner) deposited 50 million to Yusuf as the business operator with Ahmad asking for a return on investment (ROI) of 10% or 5 million per month and Yusuf taking the remaining profit.”
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Then in 6 months, the lamongan fried chicken business recorded the following profits:
| Month | Keuntungan |
| January | 10 million |
| February | 9 million |
| March | 12 million |
| April | 5 million |
| May | 13 million |
| June | 8 million |
What happened in April was that Ahmad took the entire 5 million profit of the business without leaving Yusuf any profit, which is prohibited by the two sharia standards above.
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The main objective in Mudharabah and Musyarakah contracts is to jointly earn profits with all parties giving up something in earning these profits, so clauses that prevent profits for one or more of the parties involved in Mudharabah and Musyarakah contracts certainly violate sharia rules and this main objective. In addition, such clauses are, in some cases, made by the investor/owner of the capital in order to secure a guaranteed profit, thereby increasing the burden on the businessman/operator. May Allah, the Almighty, help us to enter into business partnerships that are in accordance with His Shariah and prevent us from entering into business partnerships whose terms violate the Shariah.
Wallahu a’lam
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References
1. هيئة المحاسبة و المراجعة للمؤسسات المالية الإسلامية. (2017). المعايير الشرعية [Review of المعايير الشرعية ]
2. Majelis Ulama Indonesia, D. S. N. (2017). Fatwa Dewan Syariah Nasional-Majelis Ulama Indonesia No: 115/DSN-MUI/IX/2017 [Review Of Fatwa Dewan Syariah Nasional-Majelis Ulama Indonesia No: 115/DSN-MUI/IX/2017].