Q: I beseech you in the Name of Allah to look at the scenario below and give me an opinion based on Shariah, I will try and explain this as best and as summarized as I can:-
Parties to this deal:-
- Me
- My cousin
- The seller
- Loan company
A seller wants to sell a butchery and also his farm
I call my cousin, who previous to going to work at his late Dads business, used to work in accounts and bookkeeping for approx 12 years. I explain to him that there is a business available that includes a butchery and a farm, he shows interest, so I ask that he come down and have a look at it, which he duly does as he had a keen interest in this type of business.
He spends approx one week on the farm going through the books and figures for the farm and butchery with the farm and butchery managers, he then gives me a two page breakdown in his own writing showing the profitability of both the farm and the butchery. We agree that WE will purchase this business from the seller and we will be partners.
He returns home, with the agreement that he will pack up his things and move down with his family to run said business.
Seller was, according to seller, in financial difficulty and needed some money urgently, so I called my cousin and we agreed that in the interim, I would pay seller R300,000 and take control of the butchery while my cousin was still preparing to come down with his family and belongings.
I duly did this, paid seller R300,000 and “took charge” of the butchery, in that the butchery manager continued to run the place but all sales would be given to me and that money was ALL used to pay seller for stock in trade, any money left over was handed to my cousin when he moved down.
My cousin relocated to the farm with his family, he duly put his younger brother to “take charge” of the butchery and he started to run the farm, he met with me shortly after to say that partnerships don’t work so he would like this entire business for himself (not even a share to his brother) to which I agreed as long as he paid me back, he agreed!
It was agreed from the start, that my cousin would use his late Dads freehold home to raise funds for the purchase of the farm BUT after running the farm for a month, my cousin met with me to let me know that he thinks the farm was NOT making any money and hence he would need the money he was raising against his late Dads home to run the farm, to which I agreed assuming that he knew what he was doing.
Out of regret and shame from my part, I agreed that I would financially help him and even share in the debt ON CONDITION that the books/accounts of the business be given to me monthly.
We met numerous times with seller, who very confused that the farm was now not making money, but based on his relationship with me, agreed to wait few months for my cousin to “turn things around”. Seller also agreed to come in and help my cousin because maybe he did not know how to run it efficiently, to which my cousin took offense and declined the offer of help from seller.
During the 10 months that followed and with some debt carried forward from before, he now owed me a total of R140,636.
To try and summarize, a period of approx. 10 months passed and my cousin claimed he had “lost” the R650,000 he raised against his late Dads home and now he wanted out, so he was going to pack up and move back to where he WAS before his Dad passed away, he claimed he had already secured a job so as to pay back the loan.
He subsequently NEVER ever gave me any books/accounts of the business, when asked about it, he said he had no time, so I even offered to get my accountants to do it, at my cost, to which he bluntly refused.
Before he left, and after convincing me that the butchery was also running at a big loss, he sold “the spot” for R100,000 and deposited that money into my account.
And so he left, taking with him majority of the goods from the butchery and the farm.
In the 18 months that followed, he sold his late Dads home to pay off his mum, brothers and sister but not before settling the loan amount he borrowed and settling debt his late father had left, he claimed that his brothers and sister had to lose a bit off their shares so he could settle the loan.
He never spoke of paying me back and now he claims he can pay me only R120,000 towards the R140,636 that he owes me and, that to, in installments over 5 years, also he claims, he owes me nothing towards the R200,000 I paid for the butchery as that was “mine” because I paid the seller without him and when he was not even present.
My questions are:
- If the butchery was mine, like he now claims, does it mean that all items, removed by him and he refuses to return, can be considered by me as stolen?
- If he says it was all his business and so what he removed from the butchery is not stealing, then am I not entitled to my R200,000 back as well?
- I owe my Uncle R150,000, he has agreed to accept the installments my cousin proposes, to knock off part of my debt with him, am I allowed to let my uncle collect the installments directly from my cousin?
- Am I considered bound to my commitment to share his so-called debt given that he, to date, has never ever given me books/accounts to the business and, in fact, refuses to do so and has even refused to give my Uncle the books/accounts?
I understand that you only have my version but I make Allah a witness between us, that I have told you the truth so I ask of you to please give me the Shariah opinion on this.
A: Our understanding of the above scenario is that at the outset, yourself and your cousin purchased the farm and the butchery in partnership. Later on, your cousin wished to take the farm and butchery entirely for himself and you agreed to sell your share to him provided that you be paid back in full whatever capital you invested (together with the money you loaned him to pay off his debts),
Since you sold the butchery to your cousin, the items removed by him cannot be considered as stolen.
You are entitled to receive the R200 000 you paid for the butchery from him.
If your uncle agrees to collect the money from your cousin, it will be permissible.
Since you and your cousin purchased the farm and butchery in partnership, the farmer has the right to seek his debt from both of you. However, if you inform the farmer that you have sold your share to your cousin and he is pleased to collect the entire debt from your cousin, you do not have to assist him in paying the debts. Nevertheless, if you pay any amount to the farmer you will have the right to claim that amount from your cousin. You are not obligated to assist him in paying all other debts that he incurred (after you sold your share to him) while running the farm and butchery.
Note: The answers to the above are based on the information provided and Allah Ta’aala knows best.
قال ومن أودع رجلا ألف درهم وأحال بها عليه آخر فهو جائز لأنه أقدر على القضاء فإن هلكت برىء لتقيدها بها فإنه ما التزم الأداء إلا منها بخلاف ما إذا كانت مقيدة بالمغصوب لأن الفوات إلى خلف كلا فوات وقد تكون الحوالة مقيدة بالدين أيضا وحكم المقيدة في هذه الجملة أن لا يملك المحيل مطالبة المحتال عليه لأنه تعلق به حق المحتال على مثال الرهن وإن كان أسوة للغرماء بعد موت المحيل وهذا لأنه لو بقيت له مطالبة به فيأخذه منه لبطلت الحوالة وهي حق المحتال بخلاف المطلقة لأنه لا تعلق لحقه به بل بذمته فلا تبطل الحوالة بأخذ ما عليه أو ما عنده قال ويكره السفاتج وهي قرض استفاد به المقرض سقوط خطر الطريق وهذا نوع نفع استفيد به وقد نهى الرسول عليه الصلاة والسلام عن قرض جر نفعا (الهداية 3/130)
كتاب البيوع … أما تعريفه فمبادلة المال بالمال بالتراضي كذا في الكافي وأما ركنه فنوعان أحدهما الإيجاب والقبول والثاني التعاطي وهو الأخذ والإعطاء كذا في محيط السرخسي وأما شرطه (الفتاوى الهندية 3/2)
الثمن ما يثبت في الذمة دينا عند المقابلة وهو النقدان والمثليات إذا كانت معينة وقوبلت بالأعيان أو غير معينة وصحبها حرف الباء (رد المحتار 5/152)
فصل في القرض ( هو ) لغة ما تعطيه لتتقاضاه وشرعا ما تعطيه من مثلي لتتقاضاه وهو أخضر من قوله ( عقد مخصوص ) أي بلفظ القرض ونحوه ( يرد على دفع مال ) بمنزلة الجنس ( الدر المختار 5/161)
Answered by:
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)