The Mudarib’s Entitlement to Expenses during Ḥaḍar: A Jurisprudential Study in Light of the Five Schools of Islamic Law

Abstract

One of the issues examined in the jurisprudential chapter on muḍārabah is the mudarib’s entitlement to expenses during ḥaḍar (residence/non-travel). Imami and Sunni jurists agree that, as an initial principle governing muḍārabah, when the mudarib is in ḥaḍar, he must bear from his own property the expenses of food, clothing, transportation, accommodation, and all other necessities incurred during residence. Accordingly, he has no right to require the rabb al-māl (capital provider) to bear any of these expenses out of the muḍārabah capital. In addition to consensus (ijmāʿ), the denial of the mudarib’s entitlement to such expenses has been substantiated by established customary practice (sīra), the presumption that disposing of another’s property is impermissible, and the authentic report of ʿAlī ibn Jaʿfar. Imami, Hanafi, and Hanbali jurists, relying on the Prophetic tradition, “Believers are bound by their stipulations,” as well as on the view that expenses constitute consideration for the benefit derived, the existence of implied authorization to dispose of the property, and analogy (qiyās) with muḍārabah during travel, maintain that it is permissible to stipulate the mudarib’s entitlement to expenses during ḥaḍar, notwithstanding the implication of the unrestricted terms of the muḍārabah contract. Such a stipulation thereby establishes for the mudarib a Shariah-based and legally enforceable right to claim these expenses. By contrast, Shafi‘i and Maliki jurists consider such a stipulation invalid and vitiating the muḍārabah contract, on the grounds that it contradicts the legal implications of the contract, falls outside the provisions of the Qur’an, results in uncertainty as to the amount of the muḍārabah capital, and conflicts with the principle that the mudarib is entitled to nothing beyond the agreed share of profit. All of these arguments have been critically examined and analyzed in this article, which adopts a descriptive-analytical methodology and concludes that the view affirming the validity of stipulating expenses for the mudarib is well-founded.

DOI: https://doi.org/10.54633/2333-025-059-010