Liability when partner causes loss of jointly-owned assets
Fatwa No: 354442

  • Fatwa Date:27-12-2017 - Rabee' Al-Aakhir 9, 1439
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Question

Assalaamu alaykum. Recently, one of my partners contacted me to ask for my opinion and approval to ship machinery that we both own together from Syria. At first, I did not feel so motivated as I knew that there would be a risk of it getting either damaged or stolen on its way. However, my partner explained to me that another person, (x), has already shipped using (y), who is experienced in shipping etc., and that X's goods have arrived to Egypt safe and sound. So we agreed to use Y as he was the person who had a previous success rate in getting equipment out of Syria. Now here is the problem, after a couple of months of making the agreement, my partner contacted me to inform me that the machinery had been stolen on the way about a month ago, and they had to pay a ransom to have it released, and now it has been stolen again. I then asked how it can get stolen, as I thought that X managed to ship them with no problems whatsoever, and he then replied by telling me that he did not use Y to ship, but rather used Z as he was cheaper and more known to them on a personal level (and therefore more trustworthy). My direct reaction was to ask how he could be able to do so, as he had never attempted to do such shipment, so we should have gone with Y as agreed. Anyhow, we were forced to pay a ransom again, which was promised to be the final one, and until now the goods have not been handed back to us. I would just like to know; since my partner did not have my consent to use Z as the shipper, who is responsible for the damages caused (payments made for shipping and ransoms)? And considering that it does not seem like we will get our machines back as it has been almost a year, who would be liable for the cost of the machine?

Answer

All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger. 

What you mentioned is not enough to conceive the matter completely to be able to issue a ruling on it, although what can be readily understood is that there was an agreement to ship the equipment in a safe manner, whether through that person or another. Therefore, your partner is a guarantor if he gives it to a non-trustworthy person or gives it to a person who is not specialized in shipping and other such things that can be considered as negligence by the people in this field. He is a guarantor of the money of his partner in this case because of his crossing the limits and his negligence.

Al-Manthoor fil-Qawaa'id reads about the causes of the guarantee, “It is of two kinds: a hand that is not trustworthy, such as the hand of a usurper; and a trustworthy hand, such as a deposit, a partnership, a Mudhaarabah (refer to fatwa 276166), power of attorney, and so on. If this trustworthy hand was negligent, then it becomes a hand of a guarantor (i.e. the negligent partner is liable for the cost of the lost goods).” 

However, if there was no negligence in shipping the equipment, then there is no guarantee.

You should ask the scholars in your country about the issue orally, so that they can ask you about more details and listen to your partner as well, if necessary.

Allah knows best.

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