شرط ضمان عامل در قرارداد مضاربه

The Stipulation of Managerʹs Guarantee in the Mudaraba Contract

Risk in the economic activities has forced the capital owners to guarantee the security of their principal. This fact holds more significance for the owners of micro assets like bank depositors [and investors]. Keeping in view the prohibition of Riba (usury) in Islam, the idea of including the stipulation of guaranteeing the capital in economic contracts, and in particular the stipulation of managerʹs guarantee in Mudaraba contracts, has been under study of the Islamic intellectuals and financial designers. Although some of the jurists consider the stipulation of manager-guarantee as to be valid, others believe this condition is against the nature of the contract and is therefore invalid. Furthermore some of the jurists believe that this clause leads to a transformation of the contract from Mudaraba to loan. So they consider the ownerʹs share in profits as riba (usury). Keeping in view the importance and application of the condition of managerʹs guarantee and difference of opinion among the jurists regarding this matter, this research tries to review and discuss the arguments of both the supporters and opposers. Our hypothesis was that the guarantee stipulation is against the contract nature and transforms Mozarebah into a loan, but the results show that: 1 - Although the stipulation of guarantee brings the agreement of Mudaraba close to a loan, but due to some fundamental differences between these two, does not transform it into a loan. 2- The most important argument on invalidity of the guarantee stipulation in a Mudaraba contract, are the specific traditions (hadith) narrated regarding this issue, whereas all the other arguments are not strong enough.