838 - Issue; He said: (And it is not permissible for one to say to a person upon whom there is a debt: 'Enter into a Mudaraba contract with the debt that is upon you').

Ahmad explicitly stated this, and it is the view of the majority of scholars; we know of no opponent to this. Ibn al-Mundhir said: All the scholars whose views we have preserved have reached a consensus that a man may not make a debt owed to him by a person [the subject of] a Mudaraba contract. Among those from whom we have preserved this view are: 'Ata', al-Hakam, Hammad, Malik, al-Thawri, Ishaq, Abu Thawr, and the people of opinion (Ashab al-Ra'y). Al-Shafi'i also held this view. Some of our companions said: It is possible that the Mudaraba may be valid; because when he purchases something for the Mudaraba, he has purchased it with the permission of the owner of the wealth, and he has paid the debt to the one who permitted him to pay it to him, so his liability is discharged, and it becomes as if he had paid him a commodity and said: 'Sell it and enter into a Mudaraba with its price.' The companions of al-Shafi'i placed the locus of this possibility on the fact that the purchase is for the owner of the wealth, and the Mudarib is entitled to a fair wage; because he linked it to a condition, and linking a Qirad (loan for trade) to a condition is not valid according to them. The school's [established] view is the first, because the wealth is in the possession of the one who owes the debt to him, and it only becomes the creditor's upon his taking possession of it, and taking possession has not occurred here. If he says to him: 'Set aside the wealth that I have upon you, and I have entered into a Mudaraba contract with you using it.' Then he does so, and he buys something with that specific wealth for the Mudaraba, the purchase occurs for the buyer; because he bought for another with his own wealth, so the purchase is for him. Even if he buys it on his own liability, it is the same; because he contracted the Qirad regarding something he does not own, and linked it to a condition through which he does not acquire the wealth.

Section: If he says to a man: 'Take possession of the wealth that is upon so-and-so, and work with it as a Mudaraba.' Then he takes possession of it and works with it, it is permissible according to all of them. He is an agent (wakil) in taking possession of it, and is entrusted with it; because he took possession of it with the permission of its owner from someone else, so it is permissible for him to make it a Mudaraba, just as if he had said: 'Take possession of the wealth from my slave and enter into a Mudaraba with it.'