What is the legal status if the Mudarib wrongfully passes the capital for a second Mudarabah and the capital is lost or yields profit?
General Chapter
Al-Mughni
Book of Partnership
Primary text
If the capital is lost or yields profit without the owner's knowledge, the ruling follows that of a wrongful possessor (Ghasib), according to Al-Sharif Abu Ja'far. The capital owner has the right to demand restitution from either the first or the second Mudarib. If the owner claims the first Mudarib, and the second Mudarib acted in good faith (unaware of the situation), the first Mudarib cannot claim indemnity from the second, as the second received it as a trust (Amanah). If the second Mudarib was aware of the breach, he is liable as he acquired the property wrongfully, and the loss occurred under his possession. If the capital is lost, and the second party was unaware, there are two opinions regarding the first Mudarib's recourse against him: one opinion holds he is liable due to deception (taghrir), and the other holds he is not liable because the loss occurred under the second party's possession, fixing the liability there.
Supporting text
If a profit is made, the entire profit belongs to the owner of the capital. The first Mudarib receives nothing because he performed neither capital contribution nor work. Regarding whether the second worker is due a customary wage (Ujr Mithl), there are two narrations: one grants the wage because he worked on another's property under a contract where payment was not secured, and the other denies it, comparing him to a Ghasib who works without permission and thus deserves no compensation.