A Warm Call from Hizb ut-Tahrir to the Muslims - MyKhilafah.com

58 u A Warm Call from Hizb ut-Tahrir to the Muslims
search in Islam for an opinion that agrees with the Western system or at
least does not disagree with it, so as to prove that Islam is suitable for the
age. This approach caused the shocking loss. For example, when Muslims
were asked about share companies, they should not have considered
whether Islam is able to say what the Capitalist system says about share
companies, in a vain attempt to be considered good enough to keep up
with the age. Rather the Muslims should have asked what the opinion of
Islam is regarding share companies. Then the answer would have been
that the reality of the problem in a share company is that it is a company
formed by partners who are unknown to the public. The founders of a
share company are all those who have signed the initial contract of the
company. Subscription in the company is undertaken by the obligation
of the person to buy one or more shares in the proposed company in
return for their nominal value. The contract of the share company takes
place in one of two ways. In the first instance, the shares of the company
are restricted to the founders who distribute them amongst themselves
without offering them to the public. Signing the constitution that
structures the company and includes the conditions upon which the
company proceeds does this. Everyone who signs the constitution is
considered a founder and a partner, and once they all have signed, the
company is founded. The second way of subscription is where a few
people found the company and draft its constitution containing the
company conditions. The shares are then offered to the public for
general subscription in the company; and when the time of subscription
expires, the founding assembly of the company will meet and elect a
board to run the company and the company will start its work. This
company i.e. the joint-stock company is considered in the Capitalist
system as being the actions of one party i.e. from a single individual
and not from two persons. It is defined as the action of solitary will, and
this explains why the Capitalists say that the formation of the sharestock
company is a type of solitary will action. Generally, the contract is
viewed as an agreement of two wills, and certain transactions such as sale
and lease are classified as contract. Besides the contract, there is also
the solitary will, which is a specific commitment made by an individual
like the formation of share-stock company, a co-operative and bequest.
The partner in a share-stock company makes a commitment on his part
to buy a certain amount of shares and pays a certain price to acquire
these shares, regardless of the acceptance or refusal of the other
partners, and regardless of their happiness or anger. Once he has signed
A Warm Call from Hizb ut-Tahrir to the Muslims u 59
the contract or bought the shares and so on, he becomes a partner in that
company. Thus, the shares in a share-stock company are put on sale like
bonds and premiums and are put in circulation like the currency
banknotes. So once the purchaser has paid the price required for the
shares he becomes a partner in the company. The Western Capitalists
defined the share-stock companies as "a contract between two people in
which both agree to take part in an economic or financial project by
providing a share of the Capital so as to divide between them whatever
accrues from this project in terms of profit or loss." This is the reality
of the share-stock company. Examining this type of company in light of
Islamic legislation shows that it is an invalid company, and that it is not
permitted to take part in it because any invalid transaction is Haram.
This illegality comes from the fact that Islamic legislation has determined
the reality of the company, its structure and its rules. The definition of
a company in Islam is that it is 'a contract between two or more people
who agree to undertake economic or financial work for the purpose of
(gaining) profit.' Legally this is an action that occurs between two people
and not an action that can originate from one individual. So a company
as it stands is a contract, whatever the type or nature of the company. In
Islam the contract requires the presence of both the offer and the
acceptance of the offer in one session. There must be two parties in the
contract. One party assumes the responsibility for the offer by making
the offer for example "I gave to you in marriage…" or "I sold to you…"
or "I offered to employ you…" or "I participated with you…" and so on.
The other party undertakes the acceptance by saying "I accepted this…"
or "I agreed to this…" and so on. If the contract does not include the
two parties or there is no mention of offer and acceptance, then it
cannot be (legally) convened and the contract would be invalid (Baatil).
In the Sharee’ah there is no difference between the contract for sale and
the company structure. The share-stock company is one set up under
Western legislation, and it is considered as an action relating to solitary
will and not like the contract for sale. So it does not contain two parties.
Rather the company consists of one party or group that has committed
itself with something and has not committed itself to this thing with
another group or party. Islamic legislation considers the company
structure to be like the contract for sale, contract for leasing,
representation (Wakalah) and so on. It does not consider it to be similar
to actions of charitable endowment (Waqf), bequests (Wasiyyah), the
offering of incentives and the giving of prizes and so on. Therefore,
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