واکاوی فقهی صوری‌گرایی در راهکارهای تدارک خسارت مضاربه؛ مطالعه انتقادی دلالت‌های آن در نظام بانکداری اسلامی

1. Introduction and Objective
Mudarabah, the commercial partnership between a capital-owner (rabb al-mal) and a working agent ('amil), occupies a central place in Imami jurisprudence and Islamic civil law as a legitimate, justice-oriented alternative to interest-based lending (riba). Its raison d'etre is the sharing of both profit and loss: the owner advances the capital, the agent contributes labour and expertise, the resulting gain is divided by agreement, and a genuine loss of the principal falls, on the well-known (mashhur) Imami view, upon the owner, because the agent is in law a trustee (amin) who is not liable for losses in the absence of transgression or negligence. Accordingly, the classical jurists treat a guarantee clause (shart al-daman), which makes the agent absolutely liable for the principal, as void, or even as voiding the contract, since it contradicts both the trustee status of the agent and the requirements (muqtada) of the contract.
In practice, however, capital-owners are reluctant to expose their principal to risk and seek to secure its return. To accommodate this concern while ostensibly respecting the prohibition on the guarantee clause, several contemporary jurists have devised secondary mechanisms presented as legally distinct from the void guarantee: a loss-indemnification clause (shart al-tadaruk), framed as an obligation to act (shart al-fi'l) rather than a result-stipulation (shart al-natija); the gift of a specified share (hibat al-hissa) by the agent to the owner; and a transfer-of-loss stipulation imposed after the loss has already settled upon the owner. Each device is defended as a permissible means of protecting the principal that does not amount to the prohibited guarantee. The objective of this study is not to catalogue these opinions but to test their Shariah validity and to draw a clear line between a legitimate juristic solution and a usurious stratagem (hilat al-riba). Its central question is whether these widely used devices are substantively different from the void guarantee clause, or whether they are merely verbal and formal re-descriptions that reproduce the very same economic outcome. Relying especially on the jurisprudential foundations of Imam Khomeini, the article argues that the absolute elimination of risk for the capital-owner is itself the essence of riba; hence any condition that produces a zero-risk position for the owner, whatever its legal label, is void.

2. Methodology
The research employs a descriptive-analytical method grounded in primary Imami sources. It first describes and reconstructs the positions and proofs of the jurists concerning each proposed device for validating the guarantee, drawing on canonical texts such as al-Ansari's Makasib and the glosses on al-'Urwa al-Wuthqa, together with the works of leading contemporary authorities including Imam Khomeini, al-Khu'i, al-Sadr, Makarim Shirazi and Sayfi Mazandarani. It then moves from description to critique, evaluating these positions against the substantive purpose (ghaya) of the contract and the definitive rationale ('illa) of the prohibition of riba, rather than against their surface linguistic form. Methodologically, the study separates the performative custom ('urf insha'i), which classifies a stipulation by its wording, from the real custom ('urf waqi'i), which judges it by its economic result. While conceding that conjectural maqasid carry no probative authority in Imami usul, the analysis rests on textually attested rationales (maqasid mansusa) and the definitive causes of rulings, as well as the temper of the Lawgiver (madhaq al-shar') in preserving the boundary between covenantal and participatory contracts. The argument is finally subsumed under the theory of the invalidity of legal stratagems (butlan al-hiyal), using Imam Khomeini's principle of the impermissibility of contradiction in legislation (tanaqud fi al-ja'l) as its decisive analytical instrument.

3. Research Findings
The analysis yields several connected findings. First, the agent's guarantee framed as a result-stipulation is void by near-consensus, because it negates the agent's trustee status and conflicts with the essence of the contract; recasting it as an implicit creation (insha' dimni) does not cure this defect. Second, and most importantly, the much-relied-upon distinction between an obligation to act (the indemnification clause) and a result-stipulation (the guarantee) is only a change of expression, not of substance: in both cases the financial burden of the loss ultimately rests on the agent, so the practical result is identical, and the structural difference at the level of legal conception does not remove the corrupt consequence. Third, the gift-of-a-share device is logically strained, since one cannot gift a profit-share that does not yet exist, while the transfer of loss after settlement is, despite its wording, a circumvention of the prohibition that paves the way to a guaranteed, risk-free return.
Fourth, there is a unity of criterion (wahdat al-milak) between the invalidity of usurious stratagems and the invalidity of these formalistic guarantee devices: if the Lawgiver forbade riba on grounds of injustice and exploitation, He cannot be taken to have permitted the very same outcome, namely secured profit and absolute capital-safety without risk, under a different name; to hold otherwise entails a contradiction in legislation and renders the prohibition of riba futile (laghw). On this basis the article advances a risk-ownership balance model: the legitimacy of the owner's profit is contingent upon his acceptance of systematic risk, so any device, even a valid-looking obligation to act or an independent binding contract, that drives the owner's risk toward zero is substantively a stratagem and transforms the contract into a void one. Riba is therefore defined more broadly than mere excess in a loan: it is the absolute insulation of capital and the severance of profit from productive risk.

4. Conclusion
The study concludes that not only the explicit guarantee clause but also its proposed alternatives are, in substance and purpose, the same void stipulation in altered linguistic dress. Where a stipulation contradicts the requirements of the contract or the Shariah, any device that reproduces that same stipulation, even within another binding contract, is likewise void. For Islamic banking the implication is significant: many participatory instruments currently reduce investment risk to zero through such formal devices, bringing them close to interest-bearing loans. Preserving the Shariah integrity of these contracts therefore requires a transition from a collateral-centred model to a project-centred one, a clear separation of the guarantee of good performance from the guarantee of the principal itself, and the replacement of the agent's disguised guarantee with genuinely independent risk-management tools such as third-party guarantees and insurance. The article recommends that regulators and legislators explicitly invalidate any indemnification obligation that converts a partnership into absolute capital-protection, thereby safeguarding both the productive function of Mudarabah and public confidence in the legitimacy of Islamic financial contracts.