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Last Updated: 2013/02/02
Summary of question
Is tacit agreement which is not in writing considered and treated as partnership?
question
Two people have tacitly agreed to buy a piece of land from a third individual without prepayment. They are going to give the owner a check which will be cashed in due course of time. These two people will then sell the property to repay the principal owner their debt. The costs will be subtracted and the profit made out of this transaction will be equally divided among the buyers. The partners do not sign any written contract. In fact, it is only one of the buyers who is tasked to buy the property, carry out the transaction and issue a check. It has been decided that that the other buyer would not have any role in the transaction. Now the purchased property has been sold and the debt of the principal owner has been repaid in time and the ownership documents were transferred in the name of the buyer. None of the two buyers spent their capital in this transaction. The price was paid to the original owner after the property was sold. Given the fact that the other buyer had no role in the transaction and the entire transaction was carried out by only one of them, I wish to request you to reply to the following questions: 1) Is such a tacit agreement which is a kind of partnership valid or invalid? 2) If the real buyer claims to have used part of his capital to pay the price of the property, what is the obligation? 3) If the buyer denies partnership or any tacit agreement, what course of action should they follow? 4) If such an agreement or partnership is basically invalid, does the other party share the profit earned from the sale of the property? It should be noted that the original buyer is not ready to present the document or credentials of the sold property. Last but not least, if the buyer is ready to repay an amount of money to the other party as brokerage payment, how is the deal interpreted?
Concise answer
The answers received from the offices of two of the grand religious authorities are as under:
Office of Grand Ayatollah Sistani (may Allah grant him long life):
If the purchase and sale transactions had been carried out by the buyer as an agent of the partner, the transaction are in order (valid). The agent should act as agreed. However, if he did not intend to be his agent freely, he can demand his partner to be paid for agency. In case of a dispute, they should turn to a legal authority so that, first of all, the partnership should be proved and then the share of each group be determined. God knows best.
Office of Grand Ayatollah Saafi Gulpaigani (may Allah grant him long life):
In the said case, if the piece of land had been purchased by both of them or the one who has purchased has also been an agent of the other party, the property belongs to both of the two individuals and they will have their share of it. If the buyer has bought the property for himself, the other individual is not entitled to anything. If there is a dispute over the ownership of the property, the two people should turn to legal authorities for solution. God knows best.
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