Question:

Assalamu alaikum, our honourable Sheikh, May Allah guide you to what He and His honourable Messenger love.

I have a question, in the case of a partnership between two in a commercial vehicle; the first party has two thirds, and the second party has a one-third and himself works in the vehicle. They stipulated to divide the profit as follows: of the Net profit for the car, the second party takes the wage of a driver plus the one-third share, and the first party takes the two-thirds. Is this legally permissible or not? Wa Baraka Allahu Feeka

Answer:

Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,

Company (partnership) is of two types: a partnership of properties "Amlak", and a partnership of contracts "Uqood":

The company of properties or the "Company of assets" is like partnership on a car, for example....

The company of contracts is like trading contracts; for example, the company of "Al-Mudharaba" (two or more) or the company of "Al-‘Inan" (equal)...

1. In the company of contracts, the effort is a partner on whom the company was contracted. The partner has a percentage of the profit, and his effort is for the company. So it is not permissible for him to take a wage as a recompense for his effort, because the effort he expends to the company is in return for the ratio on the profit according to the stipulation, and the loss is based upon the capital.

2. In the Company of property "assets", the subject of the contract is the asset or the property, it is what the company has contracted on, and not on the effort. Thus it is allowed that one of the partners in the "assets" company to lease his effort to the company, so he works as a driver in return for a wage, if the company is on a car...

But the wage of the driver does not come from the profit, because the employee takes his stipulated wage on his performance of work; so if it is linked to the profit, then there may be no profit, hence there is no wage. This is legally impermissible because the employee deserves the wage if he performs his work, whether the company profited or lost, rather his profit comes from the company's capital, whether it profited or lost...

Ibn Majah narrated in his Sunan, Abdul Rahman ibn Zayd ibn Aslam, from his father, from Abdullah ibn Umar, that he said: The Messenger of Allah (saw) said:  «أَعْطُوا الْأَجِيرَ أَجْرَهُ، قَبْلَ أَنْ يَجِفَّ عَرَقُهُ» "Pay the worker for his work before his sweat dries"

Therefore, the answer is that it permissible for one of the partners in the company of property "assets",  to work as an employee in return for a defined wage in addition to his share of the profit according to the partners' stipulation, and the loss is based upon the ratio of the capital shares of each partner.

Your brother,

Ata Bin Khalil Abu Al-Rashtah

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