Abraham L. Udovitch
The institution of partnership was one of the chief means in the medieval Islamic world enabling merchants and others to combine their resources and skills for investment in commercial undertakings. According to the various schools of Islamic law, resources could take the form either of a cash investment1) or of goods and merchandise 2), and skills, of commercial know-how and/or of a particular skill on the part of one or all of the partners in some type of trade or craft.
In terms of each party's contribution to the common venture, partnerships fell in several categories. It could be a complete partnership, that is, one in which all partners contributed both capital and services; it could be an arrangement like the commenda (Arabic: muḍāraba, muqāraḍa, qirāḍ)3) in which one party supplied the capital and the other the services and, in Malikite and Hanifite law, it could take the form of a labor partnership, that is, one in which the only investment on the part of all its members was their skill or labor. In this last category of partnership, the capital itself consisted solely or primarily of the labor of the partners.
Labor is held by Hanafite law to be as valid a form of investment as currency; it is acceptable for the formation of both a total (mufāwaḍa)1) and a limited investment ('inān)2) partnership. The type of labor envisaged is usually a skill in some kind of manufacture such as tailoring, dyeing, weaving, etc3).
This partnership is designated in several ways: sharika fi 'amal bi-aydihima, "a partnership of work with their hands"; ash-sharika bil-a'māl4) a partnership in work"; sharikat al-abdān, "a partnership of bodies"; sharikat aṣ-ṣanā'i', "a partnership of craftsmen"; and sharikat at-taqabbul, "a partnership of acceptance".
A partnership of acceptance is when two craftsmen form a partnership in the acceptance of work such as tailoring, fulling, and the like. It is also designated as the partnership of bodies, because they work with their bodies, and as partnership of craftsmen, because their craft is their capital 5).
The division of labor in medieval industry was often such that the person who did the manufacturing did not necessarily own the raw material upon which he worked or have anything to do with the sale of the finished product. The manufacture and processing of materials was highly specialized1). Their skills were often the only commodity which craftsmen sold. This fact made it possible for craftsmen to form work partnerships without pooling any cash or goods, their sole asset consisting of their particular skills2). In this type of partnership, the taqabbul, or acceptance of the raw material, assumed a central function, paralleling that of the initial purchase in a cash partnership3). Just as it is the initial purchase on behalf of the partnership that gives final effect to the cash partnership, so in a work partnership, the initial acceptance of a job in the name of both partners is the moment at which the association becomes truly effective. It is undoubtedly because of the centrality of the taqabbul transaction that, among others, a work partnership was designated as sharikat at-taqabbul4).
As for the work partnership, it is valid according to our view. It is not valid according to Shāfi'ī, may God have mercy upon him, in whose view the basic principle of partnership is proprietary partnership5), an element which is not found in this particular partnership because of the fact that intermingling of labor is not realizable.
We, however, hold to the permissibility of this partnership on the basis of the element of agency (wakla). Just as the appointment of either partner as an agent for the acceptance of work would be valid, so too would this partnership be valid. People have been conducting their affairs by means of this form of partnership and by means of a credit partnership (sharikat al-wuj016B;h)6) without disapproval since the time of the messenger of God, may God bless him and keep him, up to our very own day. This is the basis for the permissibility of the partnership. The right to profit in a partnership derives in some cases from the money invested and in others from the work invested. The latter case is exemplified by the commenda in which the investor is entitled to his portion of the profit by virtue of his money, and the agent to his portion by virtue of his work. This contract (i.e., the commenda) is a partnership of hire. Like hire, it does not obligate the agent; like a partnership, it does not require the setting of a time limit. If, therefore, a partnership contract between two people with money is valid, such a contract is similarly valid with an investment of work; for the right to profit is secured by either of the two investment types. This holds true, in our opinion, whether or not each partner's craft is the same.
Zufar, may God have mercy on him, held that when the w<jrk is the same, such as a partnership between two fullers or between two dyers, the contract is permissible; if each one's work is different, such as a partnership between a fuller and a dyer, then the contract is not permissible. In the latter case, each of them is incapable of doing the work his colleague accepts because it would not be of his craft. A difference between the crafts of each partner would make it impossible to realize the intended aim of the partnership. We, however, hold to the permissibility of this partnership on the basis of the element of agency. The appointment of as person a an agent for the acceptance of work is valid on the part of one who is himself able to do the work involved, as well as from one who is unable to do so. The person accepting the work is not specifically obliged to execute it with his own hand, he need only help in the work and see to its execution. Each of the prospective partners is not incapable of carrying this out, and the contract is therefore valid. This type of partnership can be in the form of an 'inān or, with the proper combination of conditons, a mufāwaḍa partnership. That is, in the case of the mufāwaḍa, each one is liable, by virtue of the mutual surety (kafāla, implied in this contract, for any obligation incurred by his colleague. In the case of 'inān partnership, each one is fully liable only for the obligations personally inc-curred by himself, as is the case in agency1).
It is on the basis of three arguments that Sarakhsī justifies the work partnership. Two of these, agency as a basis for partnership and the equation of labor with money as a source of profit, are theoretical, and one, that of continuous usage since the time of Muḥammad, is a historical argument.
The concept of agency is the very cornerstone of contractual or commercial partnership (sharikat al-'aqd) in Hanafite law. Any commercial transaction for which the appointment of an agent is valid is also valid for the formation of a partnership2). Since a craftsman may appoint another to accept work on his behalf, a partnership in which two craftsmen contract to share the income of their work in any mutually agreed upon manner is also legidmate.
By analogy to the commenda contract, Sarakhsl establishes investment in the form of labor as a valid basis for profit in a partnership on the same level as the investment of money. In a commenda, one party's claim to profit is based on his work, and that of the other on his money; the right to profit in a partnership, therefore, is equally secured by either of these two investment forms.
In addition to the two theoretical arguments in support of the legitimacy of a work partnership, Sarakhsī, for some reason, feels it appropriate or necessary to adduce a third argument based on historical usage. From the time of Muḥammad, and probably even earlier, people have practiced this form of partnership without criticism or rebuke. The implication here is that if there were anything legally objectionable in a work partnership, the Prophet would have disqualified its use. This statement of Sarakhsfs constitutes a surprising, and possibly unintentional, admission of the reception of non-Islamic institutions into Islamic law. Historical usage and custom, when not supported by a statement or precedent attributed to the Prophet, do not constitute an acceptable source of Muslim law (uṣūl al-fiqh). In the course of his treatment of partnership, Sarakhsī frequently cites the customs and needs of merchants to bolster his argument, but he does not, in the Book of Partnership at least, designate this factor, as he does in this instance, as a basis or source (aṣl) for legitimacy. In most cases, his appeal to custom is either an ancillary argument or one invoked to justify a practice for which no basis can be found in the application of strict legal reasoning. There are, thus, two noteworthy aspects to Sarakhsī's use of this line of argumentation. First, its very invocation is somewhat surprising in view of the fact that Sarakhsī had already firmly established the validity of the work partnership on the basis of two solid theoretical legal arguments. Second, the designation of its continuous practice as a source for the legitimacy of the work partnership is unusual, since custom is not a recognized source of the fiqh.
The nature of work -as a partnership investment presents a number of problems, some paralleling those connected with a cash partnership and others peculiar only to a work partnership. In a cash partnership, the investment of different types of currency on the part of each partner is permitted because the value of each one's investment at any given stage of the partnership is easily determined. The parallel problem in a work partnership, that of an association between two craftsmen of varying trades, is also allowed, but on very different grounds. The value of different types of work is not subject to the same accurate determination as is that of different currencies. This kind of work partnership is valid, according to Sarakhsī, because the element of agency is realizable in such a relationship. Irrespective of the kind or amount of work each one contributes, the distribution of profit and loss follows the shares agreed upon at the formation of the partnership 1).
If one of the partners in a work partnership is absent, or sick, or does not work while his colleague is working, the profit is still to be shared between them according to what they agreed upon. This is similar to what is recounted concerning a man who came to the Messenger of God, may God bless him and keep him, and said: "While I am working in the market place, my partner is praying in the mosque." The Messenger of God, may God bless him and keep him, replied: "Perhaps your business success2) derives from him". The meaning of this is that the claim to reward derives from the acceptance of the work and not necessarily from its direct personal execution; in this case, the acceptance was on behalf of both partners, even if the work itself was carried out by only one of them3).
It is the acceptance of work, either jointly by both partners, or by one of them in the name of the partnership, that provides, according to Sarakhsī, the basis for the communality in the work partnership. The distribution of profits and losses need not bear any relationship to the distribution of actual labor.
It should be noted, though, that underlying the entire Hanafite discussion of the work partnership is the assumption that, regardless of the kind and amount of work each partner does, both are to participate to some extent in the partnership work. While undoubtedly concurring with the Prophet's view concerning the efficacy of prayer for the success of one's business affairs, Hanafite jurists nevertheless disqualify a work partnership which provides that one partner spend his entire time praying at the mosque, while his colleague does all the work in the market place.
While labor on the part of both partners is a necessary feature for a valid work partnership, it is not the measure of each partner's investment, and it is superseded as a basis for partnership profit, in Sarakhsī's view, by the act of the acceptance of work. Kāsānī, a Hanafite writer who flourished a century after Sarakhsī, refined the implications of this idea and carried it a step further by stating: "The reward in this (i.e., work) partnership derives from the liability for the work undertaken, and not from the execution of the work itself".1) As a result of Kāsānī's insight, we are finally provided with a method of measuring the investment in a work partnership. Paradoxically enough, this is expressed not in the amount or quality of work invested, but in the degree of liability undertaken by each partner. In a mufāwaḍa work partnership, the requirement of investment equality would not, therefore, extend to the amount of labor each partner contributes, but would be satisfied, instead, by an equal share of liability undertaken by each.
The flexibility of Hanafite partnership law and its attentiveness to the practical needs of commerce are nowhere more clearly reflected than in its treatment of one special form of a work partnership—the association between a craftsman and a stallowner.
If an artisan took another man into his stall with the intention of assigning all the work to the latter on a half profit basis, this arrangement is, by analogy, invalid 2). This is so, because the investment of the stall-owner consists of intangible property1), and intangible properties are not suitable for partnership investment. If it is the stall-owner who accepts the work, the artisan is his hired man on a half profit basis. This last sum, however, is indefinite, and ignorance of the wage invalidates a hire contract. If, on the other hand, the artisan himself accepts the work, he becomes a lessee of the stall to the extent of one half the proceeds of his work. This sum, again, is unknown, and the lease contract is, therefore, invalid. By exercising juristic preference (istiḥsān), he (referring to Shaybānī) permitted this arrangement because of its continuous use in the affairs of men without any disapproving voice being raised against it. Objecting to transactions which are in common use among the people is in itself a type of offense. In order to avoid this offense, this contract is permissible. For there is no explicit text (naṣṣ) nullifying it, and the people have a need for this contract. For example, if an artisan arrives in a certain town, its inhabitants would not know him and would not entrust him with their merchandise. They would, however, entrust their merchandise to the stall-owner, whom they do know. As a rule, the stall-owner would not gratuitously provide the likes of this service to the artisan. The validation of this contract achieves the desired ends of all parties concerned. The artisan receives compensation for his labor; the people derive the benefits of his services; and the stall-owner receives compensation for the use of his stall. The contract is permissible. The stall-owner is entitled to a share of the profit because he has taken the artisan into his stall and given him some help with his merchandise. He may perhaps help in some aspect of the work, as for example, a tailor who accepts cloth, oversees its cutting, and then hands the material over for completion of the tailoring to another artisan on the basis of half profit. For these reasons, the stall-owner is entitled to a share of the profit. The basis for the permissibility of this contract is like that underlying the permissibility of the salam2) contract; for in relation to this contract, the requirements of the law yielded3) in face of the people's need for it4).
All the numerous, weighty legal considerations militating against the validity of this particular form of work partnership are overruled solely on the grounds of practical necessity. By analogy to a parallel form of cash partnership, the association between the stall-owner and the artisan should be invalid 1). Furthermore, the stall-owner's contribution consists of intangible property, which is not an acceptable form of partnership investment. The association is disqualified as a hire or lease contract because the remuneration which would correspond to the wage or the rent is not specified. Only by the exercise of juristic preference is the partnership permitted. From Sarakhsī's description of the special circumstances which in this case warrant the suspension of traditional legal considerations, one is left with the strong impression that partnerships between artisans and stall-owners were a common occurrence and that they fulfilled an important, if not indispensable, function in urban economic life. Hanafite jurists chose, in this case, to act in accordance with the dictum that discretion is the better part of valor. Rather than insisting on the rigid application of legal norms and risk thereby almost certain violation of an untenable and unenforceable prohibition, they yielded to the prevalent commercial custom and included this contract within the pale of legally sanctioned practice.
While the passage from Sarakhsī quoted above is an unusually candid statement of the concessions which Hanafite law was prepared or forced to make to popular business usages, it is by no means unique. Throughout their discussion of partnership (and also of other commercial contracts and practices), Hanafite writers, from ShaybanI on, frequently invoked customary practice or the needs of merchants as a justification for their exercise of juristic preference in the face of the occasionally confining effects of systematic legal reasoning. The total effect of this greater leniency was to enlarge the area of legitimacy for transactions and contracts, thereby giving merchants and others a much freer hand in the conduct of their affairs.
While the comparative frequency with which juristic preference is exercised may shed some light on the nature of Hanafite legal method, the circumstances in which it is used, and the rationale for its application provide some valuable insights into the attitude and awareness of the Hanafite jurists themselves. They did not, as I think this passage amply demonstrates, develop their legal norms in splended isolation from, or total disregard of, their surroundings. Sarakhsī, for example, does not limit himself to a general appeal to custom and the needs of commerce, but illustrates his argument by outlining the specific circumstances in which the prohibition of a partnership between an artisan and a stall-owner might create great difficulty. It would appear that the jurists' discussion of commercial matters was based on a fairly clear and accurate understanding of the economic realities of their environment 1), and that they were quite conscious of the likely effects of their promulgations on the conduct of economic life. Without obliterating the distinction between how people actually conduct their affairs and how they should be conducted, the jurists strove, within reasonable limits, to narrow the gulf between the two and, in this case at least, successfully bridged it.
In their discussions of work partnerships, Hanafite jurists seem primarily to have had in mind associations between skilled workers. The examples illustrating various aspects of this partnership are consistently drawn from the skilled crafts, such as dyeing, fulling, tailoring, et cetera. There seems also to be a predilection for sedentary work, work which can be accomplished by the partners while sitting in their stall and does not involve any roaming and roving about the town or countryside. These qualifications are not explicidy stated, but emerge both from the context of the discussion of the work partnership and from the specific exclusion of certain categories of work as a basis for it2).
A partnership in firewood-gathering, hay-cutting, the gathering of wild berries, nuts, or dates is not valid. It is not permissible, for example, for two people to agree to gather brush and firewood on the condition that they share equally, or in some other proportion, in the income derived form its sale 1). Similarly, no partnership in hunting, fishing, or treasure hunting is allowed. Only if the partners hunt together with the same dog, or fish together with the same net, or stumble upon a treasure while in each other's company can they legitimately share in the gain resulting from their endeavors. Otherwise, whatever each one gathers, traps, or finds, belongs exclusively to him, his colleague having no claim whatsoever to any share of it2).
A partnership between two porters stipulating that they share the wages either may earn from transporting goods on their own backs or on the backs of their respective pack animals is invalid. A partnership in the fees deriving from hiring out an animal, with one party providing the beast and the other the saddle and accessories, is not permitted. Invalid, as well, is a partnership in which one supplies the animal, while his colleague uses it to wander around selling merchandise on the condition that the sales' profits are to be shared between the two of them. By analogy, a ship or a house is also excluded from being used this way in a partnership3).
Any partnership involving work on resources or raw material belonging to neither of the partners, or which are part of the public domain, is invalid. This applies to the extraction of minerals from public lands or to the use of sand or clay from this source for the purpose of manufacturing glass or bricks. If, however, the two parties joindy purchased the raw material or joindy leased the land from which it was extracted, the partnership would become permissible. Any inidal joint purchase or lease would immediately provide the basis for a valid partnership contract, and the partners could then proceed to process the raw material and share in the profit of its sale in any manner mutually agreed upon 4).
Generally, a partnership concluded and carried out on the basis of any of the disqualified types of work listed above is treated either as a hire or lease contract. In cases where the partners worked separately, each one's earnings are his own and neither has any claim to any share in his colleague's gain. If they worked together, or if one used equipment belonging to the other, the profits are assigned entirely to one of the partners, while the other is entided to an equitable wage for his labor or a rental fee for the use of his equipment. The nature of each party's claim in such a case is determined by the particular circumstances of the intended partnership. For example, if two porters agreed to work together on a partnership basis and the pack animal they used belonged to only one of them, the owner of the animal would be entided to the entire proceeds of their work and in turn be obligated to pay his colleague an equitable wage. In the event that the non-owning partner labored alone, the entire income would be his and he would be required to pay the owner a fee for the use of the animal1).
While all Hanafite authorities agree that each party is entitled to some degree of restitution for the service he renders, the standard to be applied in determining this wage or fee is a matter of dispute. Abū Yūsuf holds that the associate who is assigned the role of employee is entitled to a wage equal to that customarily paid for similar work2), providing that the amount does not exceed half the total income. The same limit is to be placed on the amount of any rental which either partner might be required to pay the other. Abū Yūsuf is not completely consistent in treating an invalid work partnership as a simple hire contract. By making the amount of restitution due the employee-partner contingent on the total income of the undertaking, and thereby limiting the liability of the employer-partner, he still retains an element characteristic of partnership. Shaybānī is more consistent in this respect. While agreeing with Abū Yūsuf's criterion for arriving at an equitable wage, he rejects the imposition of any ceiling on this amount. He gives no consideration to the financial situation of the employer-partner; the employee-partner, like any other hired worked, is entitled to an equitable wage, no matter what it comes to 1).
The equation of labor with cash as a valid form of partnership investment is also accepted in Maiikite law. Consequently, the basic structure of Maiikite work partnership resembles that of its Hanafite counterpart fairly closely. There are, of course, differences in details, some of which may have had an influence on its manifestation in the economic life of the medieval Muslim world. In some respects the Maiikite work partnership is more restrictive, requiring, for example, that all its members follow the same trade or profession, thus excluding an association between a craftsman and an entrepreneur; in other respects it is more comprehensive including as it does both skilled and unskilled work within its purview.
If two people formed a partnership on the basis of the work of their hands, their labor is to considered in the same category as dirhams. Anything which is permissible in a partnership formed with dirhams is permissible in one based on the work of their hands 2).
Both skilled and unskilled labor are, like money and goods, a valid form of partnership investment. Any two laborers, craftsmen or professionals can share in the profits of their association with an investment of no capital other than their particular skills.
The division of profits and losses in a work partnership follows, as it does in other partnership forms, each partner's share in the total investment, which, in this case, would consist of the amount of labor each one contributes. No premium is placed on the quality of each partner's labor, and it is apparently only according to the quantity of work contributed by each that the division of profit is determined.
I said to Ibn Qāsim: What is your opinion of two dyers or two tailors who formed a partnership to work in the same stall, one of them being more skillful at his work than the other? Is this partnership between them permissible? He said: Mālik said that if the partnership was formed on the condition that they work in the same stall, then it is permissible. Ibn Qāsim said: It is inevitable that some people will be more skillful than others in their work 1).
Paralleling the uniformity of investment required in a cash partnership 2), a work partnership requires that all its members follow the same trade or profession and that they all work in one place.
I said: In your opinion, is a partnership permissible between two blacksmiths, two fullers, two tailors, two cobblers, two saddlemakers, two bankers, or between any two people engaging in similar work? He said: Malik said that if their trade is the same, be they two blacksmiths, or two bakers, or two tailors, or two fullers, and they formed a partnership on the condition that they both work in the same stall, this is permissible. It is not permissible, however, that they form a partnership in which one works in this and the other in that stall, or this one in one village and his colleague in another village. Similarly, a partnership is not permissible between two people, one of whom is a blacksmith and the other a fuller; it is permissible only if both are blacksmiths, or both are fullers, and in the manner which I described to you.
I said: What is your opinion of a work partnership between two fullers who were not in need of any capital, with one third of the work assigned to one partner and two thirds to the other, on the condition that the former be entitled to one third of the income while providing one third of the dye, and the other be entitled to two thirds of the income while providing two thirds of the dye? He said: There is nothing wrong with this arrangement; it is like a partnership in dirhams. For if two people formed a partnership on the basis of the work of their hands, their labor is to be considered in the same category as dirhams. Anything which is permissible in a partnership formed with dirhams is permissible in one based on the work of their hands, I said: According to Mālik, is the same applicable to a partnership formed by a group of fullers or a group of blacksmiths working in the same stall? He said: Yes 2).
A work partnership as conceived by the Mali kites assumes the participation of all its members in the actual work. An association in which all the work is assigned to one partner, while the other provides some necessary capital or equipment, but no work, is not a valid partnership. The non-working party is not entitled to any share of the income and can claim only the return of his investment and, if it happened to be in a form other than cash, some equitable rental fee for its use. In keeping with this view, a partnership between a worker and an entrepreneur on the basis of an equal division of the income is inadmissible because of the latter's non-participation in the actual work.
I said: What would be your opinion of an arrangement in which I placed a person in a stall and said to him: I will accept the goods and you will do the work on the condition that whatever God grants us will be shared between us equally? He said: According to Malik, this is not permissible1).
"Ibn Qāsim said: Among the various types of work, there are some in the pursuit of which no capital is required; and there is nothing wrong with people entering into partnerships only on the basis of the work of their hands"2). In addition to the category of work just referred to by Ibn Qāsim, there is also one in which the investment of money and/or equipment is essential. Formation of a partnership in any craft or profession of the latter category would thus involve a mixed investment of labor and capital. In such cases, the problem would be to determine which component of the investment is to serve as the basis for profit division, and then to establish an equilibrium between all the elements of each partner's investment and his share of the profit and liability. If it is the work which is the determining element of the investment, then any investment other than work must either be compensated for, or counter-balanced by an investment of similar value by the other party3).
All types of work, both physical and mental, are included within the purview of Malikite work partnership. For example, two doctors or two teachers working out of the same place may associate in a partnership to share the income from the use of their services. In the case of doctors, however, any money spent on materia medica must be contributed equally by both partners1).
The Malikite insistence on a single place of work as a prerequisite for a valid work partnership does not rule out associations between non-sedentary workers. Work which necessitates the mobility of the participants can serve as the basis for a partnership if the partners work together, helping and complementing each other's efforts. Although Malik does not, for example, approve of treasure hunting in the graves and monuments of antiquity, there is no legal barrier to a partnership in the discovery of such treasures if the partners work together2). Similarly, partnerships in the exploitation of resources found in the public domain, such as gathering fire-wood, hay and wild fruits, or hunting and fishing, or mining and quarrying, are permissible if pursued together by all parties to the association3). Any equipment or materials necessary for these pursuits, such as boats, nets, traps, et cetera, must be jointly owned or their proprietors equitably compensated for their use.
The primary function of a labor partnership, like that of any other type of medieval partnership, was to perform economic tasks that were beyond the capabilities of a single person. Certain commercial ventures might require a greater amount of capital, or might involve an amount of work, type of skill or combination of skills that one person alone could not provide. In this respect, the labor partnership as outlined in the earliest Hanafite and Malikite legal texts provided the structures for a broad range of associations for industrial and commercial purposes, permitting not only the combination of artisans from the same or allied crafts, but also allowing the association of the skill of the craftsman with the business acumen of the entrepreneur.
The legal texts, of course, do not provide us with any details con-cerning the manner in which, or the extent to which such partnerships were actually employed. Such information, to the extent that it will ever be known, will require a careful sifting of the literary and other documentary sources of the Islamic middle ages. In this search, however, the institution of the labor partnership as outlined in the legal sources will surely prove to be a helpful and reliable guide.
Aṣl. Shaybānī, Kitāb al-aṣl, Kitāb ash-sharika, manuscript Dār al-Kutub al-Miṣriyya, Fiqh Ḥanafi 34, folios 57b-77b
Kāsānī, Kāsānī Badā'i' aṣ-ṣanā'i' fi tartīb ash-sharā'i' 7 vols. Cairo, 1328/1910
Mabsūṭ. Sarakhsī, Al-mabsūṭ, 30 vols. Cairo, 1324/1906-1331/1912
Mudawwana. Saḥnūn, Al-mudawwana al-kubrā, 16 vols. 1323/1905-1324/1906
1) The Hanafites allow partnership investments only in the form of circulating currency; cf. Aṣl, fol. 58b, 11. 8-11; Mabsūt, XI, pp. 159-60; Kāsānī, VI, p. 59. However, capital in the form of goods could become eligible for partnership investment by means of a simple legal fiction (ḥiyal), cf. Shaybāni, K. al-makhārij fil-ḥiyal, ed, J. Schacht, Leipzig, 1930, p. 58, and Al-Khaṣṣāf, K. al-ḥiyal wal-makhārij, ed. J. Schacht, Hanover, 1925, p. 67.
2) The Malikite school is alone among the major schools of Muslim law in recognizing the validity of a partnership investment in the form of goods. Except for a certain category of foodstuffs, all licit goods are eligible to become part of the joint capital of a partnership; cf. Mudawwana, XII, pp. 54-56; D. Santillana, Istituzioni di Diritto Musulmano Malichita con riguardo anche al sistema sciafiita, 2 vols. Rome, 1925-38, vol. II, pp. 290-91.
3) Cf. J. Schacht, An Introduction to Islamic Law, Oxford, 1964, p. 156.
1) A mufāwaḍa partnership is one which involves mutual agency (wakāla) and suretyship (kafāla) on the part of all the partners, and can only come about on the basis of the equal investment by all parties of their total eligible resources. Cf. Qudūrī, Mukhtaṣar, Istanbul, 1319/1901, p. 53.
2) An 'inān partnership involves only mutual agency, but not mutual suretyship. It can involve any amount of capital on the part of the partners in equal or unequal shares. Cf. Qudūrī, op. cit.
3) Aṣl, fol. 57b 1. 18.
4) Kāsānī, VI, p. 56.
5) Mabsūṭ, XI, p. 152. In the ensuing translations all these phrases are translated as work partnership. My translation of taqabbul as "acceptance" requires some explanation. Schacht (Der Islam, 37, 1961-62, p. 275), following Dozy (Supplement, II, p. 304), says regarding this term, "taqabbala, a well-known technical term, does not mean 'erhalten, empfangen', but 'to take a lease, to rent for exploitation' ". In the case of partnership, Schacht's suggested translation would be inappropriate. The contextual meaning of taqabbala in connection with partnership is the acceptance by one or both of the partners of some raw material belonging to a third party for the purpose of undergoing some process of manufacture; for example, a tailor accepts cloth belonging to his customer in order to cut and sew it into a garment.
1) Cf. S. D. Goitein, "The Main Industries of the Mediterranean as Reflected in the Records of the Cairo Geniza", JESHO, vol. IV (1961), pp. 168-197. Goitein counted two hundred and ten different arts and crafts and asserts that "industry itself was divided up into highly specialized branches".
2) Cf. Mudawwana, XII, p. 43: "Ibn Qāsim said: There are types of work which do not require any capital investment, and there is no objection to people forming a partnership with the work of their hands".
3) In Hanafite law, the partnership agreement becomes fully effective only after one or more of the partners begins to trade with the joint capital. Cf. Kāsānī, VI, p. 60; Aṣl, fol. 58b, 11. 81-121.
4) In the section on partnership in Sarakhsī's Mabsūṭ (vol. XI, pp. 151-220), this designation is the one most frequently used for a work partnership. Cf. also, Shaybānī, Al-amāli, Hyderabad; 1360/1941, pp. 44-45.
5) Cf. Shāfi'ī, Kitāb al-Umm, 7 vols. Cairo, 1321/1903-1325/1907, vol. III, p, 260.
6) Concerning the credit partnership, cf. my article "Credit as a Means of Investment in Medieval Islamic Trade", in a forthcoming issue of Journal of the Americau Oriental Society.
1) Mabsūt, XI, p. 155.
2) Cf. Mabsūt, XI, p. 152. Ibn 'Arafa defines agency as follows: "Agency arises where one person authorizes another to replace him in the exercise of civil rights". Quoted in F. H. Ruxton, Mālikī Law, London, 1916, p. 201. For a brief survey concerning the rules of agency, cf. ibid., pp. 201-204; Schacht, An Introduction to Islamic Law, pp. 119-120.
1) Cf. Mabsūt, XI, p. 159.
2) Arabic: baraka, which literally translated means "blessing"; contextually, here, it means God's blessing or bounty in relation to one's wordly pursuits.
3) Ibid., pp. 157-158.
1) Kāsānī VI, pp. 76-77.
2) The analogy here refers to a case considered in the text immediately preceding this quotation. It involves a partnership in which A invests 2,000 dirhams and B 1,000 dirhams, with the profit to be shared equally and all the work to be done by A.
This is invalid, because B has no basis for claiming any of the profit in excess of his one-third share of the joint capital.
1) Arabic: manfa'a, also utility, usufruct, as opposed to 'ayn' tangible property. Cf. S. Mahmasani, "Transactions in the Sharī'a", in H. Liebesny and M. Khadduri (eds.), Law in the Middle East, Washington, 1955, vo. I, p. 180.
2) A form of sale in which the price is paid in advance and the delivery of the merchandise is delayed to specified later date. Cf. Schacht, An Introduction to Islamic Law, p. 153.
3) The Arabic verb rakhkhasa is used here in the same sense as the noun rukhsa—"special dispensation"; cf. N..J. Coulson, A History of Islamic Law, Edinburgh, 1964, p. 44.
4) Mabsūt, XI, p. 159; cf. also, Kāsānī, VI, p. 64.
1) Cf. above p. 70, n. 2.
1) In this regard, it is interesting to note that Abū Ḥanifa himself was a silk merchant and is reported to have carried on his business in the Baghdad market in partnership with another merchant. Cf. Al-Khaṭīb al-Baghdādī, Ta'rīkh Baghdād, 14 vols., Cairo, 1349/1931, vol. XIII, pp. 325, 362.
2) No single legal rule serves as a basis for the disqualification of the diverse types of unskilled labor as partnership investment. In Hanafite treatises, these are as a rule listed in one of the concluding sections of the Book of Partnership under the heading, "The Chapter of Invalid Partnership", and, in each case, one or another legal argument is marshalled to justify their ineligibility.
1) Aṣl, fol, 76, 11. 7-8; Mabsūt, XI, p. 216
2) Aṣl, fOl. 76b, ll. 4-15.
3) Ibid., 11. 15-19; fol. 77,11. 5-13.
4) Ibid., fol. 76, 1. 19-fol. 76b, 1. 4; Mabsūt, XI, p. 217.
1) Aṣl, fol. 77, 11. 5-10.
2) Arabic: ajr mithluh. Cf. Schacht, Introduction to Islamic Law, p. 154.
1) Ibid., p. 42. The Mudawwana is cast in the form of a dialogue, with questions by Saḥnūn (d. 240/854) and answers by his teacher 'Abd ar-Raḥmān b. al-Qāsim d. 191/ 806) who studied with Mālik himself for twenty years.
2) Cf. ibid., pp. 62-65.
3) Ibid., pp. 42-43. Later Malikite authorities extend the validity of a work partnership to include different, but related, work; e.g., a dyer and a weaver. Cf. San tillana, Istituzioni, II, p. 301; Ruxton, Māltki Law, p. 196; Guidi and Santillana, II "Muhtaṣar", 0 Sommario del Diritto Makcbita di Ḥalil ibn Ishāq, 2 vols., Milan, 1919' vol. II, pp. 370-72.
1) Mudawnana, XII, p. 41. For an entirely different disposition of the identical case in Hanafite law, cf. above, p. 70 f.
2) Ibid., p. 43.
3) For a partnership to be valid in Malikite law, there must exist a balance or proportional relationship (takāfu') between each party's contribution to the investment and his share of the profit; cf, ibid., pp. 41 and 54.