Question
The following fatwa in The Majlis was brought to my notice: "The son may, however, enter into a fresh partnership contract with the other partners on behalf of his father if they are agreeable." I have noted the statement, the son in his capacity as the wali may enter into a fresh partnership contract, on behalf of his father. I would be obliged if you would kindly send me the nusoos in support of this statement which empower the wali of a partner, who is mentally incapacitated (al-junoon) to enter into a new partnership contract with the remaining partners. (I query this) "Because al-j u n o o n n e g a t e s (contractual) capacity in a manner which precludes the possibility of (its) return except with rarity. (Al -Hidaayah and its Shurooh, and Ibn Aabideen).
Answer
The fatwa in The Majlis is 100% correct. You have cited Al-Hidaayah and Ibn Aabideen as if this fact was ignored. Yet, the article, Dissolution of a Partnership, in which appeared the fatwa clearly mentions the factor of al-junoon being mubtil. That is, it is mentioned more than once in the article that mental incapacity terminates partnership. Thus your query is the effect of failing to apply your mind. Perhaps you were merely searching for some point to criticize, hence you latched on to the statement which you perceived to be in denial of the element of insanity as a terminator of partnership.
In our brief response to the question, we had mentioned thrice that due to mental incapacity the partnership has terminated. Thus, raising this factor in the context of our response is devoid of merit. If you are interested in "nusoos" we advise that you extend the parameters of your research. You will then quite easily discover copious nusoos – juzwi nusoos – to corroborate the Fatwa of The Majlis. We have no obligation to provide the nusoos you are so keen on.
Furthermore, we are sure that you do possess at least sufficient rational ability to comprehend that the Shariah does not advocate the destruction of the wealth of minors, insane and mentally incapacitated persons. There is no scope in the Shariah for dumping their wealth in the sea. It is imperative, morally and legally, in terms of the Shariah for the Wali to safeguard the wealth of the minor/ insane person. It is immoral to allow the erosion and ultimate depletion of the wealth by maintenance expenditure and by the new creature called inflation.
For your edification and benefit, while there is difference of opinion regarding the Wujoob of the Wali investing the wealth of the minor or insane person, there is unanimity in its permissibility. Was-salaam
- Source
- themajlis.co.za
- Published in
- The Majlis Vol 22 No 11
- PDF page
- 11
Appears under THE RIGHT OF THE CURATOR (approximate).