The proposed arrangement is composed of the following transactions,
1- To create joint ownership in the property (Shirkat-al-Milk).
2- Giving the share of the financier to the client on rent.
3- Promise from the client to purchase the units of share of the financier.
4- Actual purchase of the units at different stages.
5- Adjustment of the rental according to the remaining share of the financier in the property.
Now I will discuss each ingredient of the arrangement in a greater detail.
(1)- The first step in the above arrangement is to create a joint ownership in the property. It has already been explained in the beginning of this article that Shirkat-al-Milk (joint ownership) can come into existence in different ways including joint purchase by the parties. This has been expressly allowed by all school of Islamic jurisprudence. Therefore no objection can be raised against creating this joint ownership.
(2)- The second part of the arrangement is that the financier leases his share in the house to his client and charges rent from him. This arrangement is also above board because there is no difference of opinion among the Muslim jurists in the permissibility of leasing one’s undivided share in a property to his partner. If the undivided share is leased out to a third party its permissibility is a point of difference between the Muslim jurists. Imam Abu Hanifa and Imam Zufar are of the view that the undivided share can not be leased out to a third party, while Imam Malik and Imam Shafi’I, Abu Yusaf and Muhammad Ibn Hasan hold that the undivided share can be leased out to any person. But so far as the property is leased to the partner himself, all of them are unanimous on the validity of Ijarah.
(3)- The third step in the aforesaid arrangement is that the client purchases different units of the undivided share of the financier. This transaction is also allowed. If the undivided share relates to both land and building, the sale of both is allowed according to all the Islamic schools. Similarly if the undivided share of the building is intended to be sold to the partner, it is also allowed unanimously by all the Muslim jurists. However, there is a different of opinions if it is sold to the third party.
It is clear from the foregoing three points that each one of the transactions mentioned hereinabove is allowed per se, but the question is whether this transaction may be combined in a single arrangement. The answer is that if all these transactions have been combined y making each one of them a condition to the other, then this is not allowed in Shari’ah, because it is a well settled rule in the Islamic legal system that one transaction can not be made pre-condition for another. However, the proposed scheme suggests that instead of making two transactions conditional to each other, there should be one sided promise from the client, firstly, to take share of the financier on lease and pay the agreed rent, and secondly, to purchase different units of the share of the financier of the house at different stages. This leads us to the fourth issue, which is, the enforceability of such a promise.
(4)- It is generally believed that a promise to do something creates only a moral obligation on the promisor which can not be enforced through courts of law. However, there are a number of Muslim jurists who opine that promises are enforceable and the court of law can compel the promisor to fulfill his promise, especially, in the context of commercial activities. Some Maliki and Hanafi jurists can be cited in particular who have declared that the promises can be enforce through courts of law in cases of need. The Hanifi jurists have adopted this view with regard to a particular sale called Bai-Bilafa. This Bai-Bilafa is a special arrangement of sale of a house whereby the buyer promises to the seller that whenever the latter gives him back the price of the house, he will resell the house to him. This arrangement was in vague in countries of central Asia, and the Hanafi jurists have opined that if the resale of the house to the original seller is made a condition for the initial sale, it is not allowed. However, if the first sale is affected without any condition, but after affecting the sale, the buyer promises to resell the house whenever the seller offers to him the same price, this promise is acceptable and it creates not only a moral obligation, but also an enforceable right of the original seller. The Muslim jurist allowing this arrangement have based their view on the principle that”,
“The promise can be enforceable at the time of need”.
Even if the promise has been made before affecting the first sale, after which the sale has been effected with out a condition, it is also allowed by certain Hanafi jurists.
One may raise an objection that if the promise of resale has been taken before entering into an actual sale, it practically amounts to putting a condition on the sale itself, because the promise s understood to have been entered in to between the parties at the time of sale, and therefore, even it the sale is without an express condition, it should be taken as conditional because in an express term has preceded it.
This objection can be answered by saying that there is a big difference between putting a condition in the sale and making a separate promise without making it a condition. If the condition is expressly mentioned at the time of sale, it means that the sale will be valid only if the condition is fulfilled; it means that if the condition is not fulfilled in future, the present sale will become void. This makes the transaction of sale contingent on the future event which may or may not occur. It leads to uncertainty in the transaction which is totally prohibited in Shari’ah.
Conversely, if the sale is without any condition, but one of the two parties has promised to do something separately, then the sale cannot be held to be contingent or conditional with fulfilling of the promise made. It will take effect irrespective of whether or not the promisor fulfils his promise. Even if the promisor backs out of his promise, the sale will remain effective. The most the promise can do is to compel the promisor through court of law to fulfill his promise and it the promisor is unable to fulfill the promise, the promise can claim actual damages he has suffered because of the default.
This makes it clear that a separate and independent promise to purchase does not render the original contract conditional or contingent. Therefore, it can be enforced.
On the basis on this analysis, diminishing Musharakah may be used for House financing with following conditions.
a- The agreement of joint purchase, leasing and selling different units of the share of the financier should not be tied-up together in one single contract. However, the joint purchase and the contract of lease may be joined in one document whereby the financier agrees to lease his share, after joint purchase, to client. This is allowed because, as explained in the relevant article, Ijarah can be affected for future date. At the same time the client may sing one-sided promise to purchase different units of the share of the financier periodically and the financier may undertake that when the client will purchase a unit of his share, the rant of the remaining units will be reduced accordingly.
b- At the time of purchase of each unit, sale must be affected by the exchange of offer and acceptance at that particular date.
c- It will be preferable that the purchase of different units by the client is effected on the basis of the market value of the house, as prevalent on the date of purchase of that unit, but it is also permissible that a particular price is agreed in the promise of purchase signed by the client.