or more, the Mudaraba remains as it is, and the profit is between them according to their condition, because a substitute for the capital was found, so it is as if he found its substitute through a sale. If there is profit in the slave, then retribution is up to both of them, and settlement is likewise, because they are partners in it. The ruling regarding the dissolution or continuation of the Mudaraba is as previously stated.

834 - Issue: He said: "The Mudarib is not entitled to any profit until he has recovered the capital."

He means that he is not entitled to take any part of the profit until he has delivered the capital to its owner. Whenever there is loss and profit in the capital, the loss is compensated from the profit, whether the loss and profit were in a single instance, or the loss was in one transaction and the profit in another, or one of them was in one journey and the other in another; because the meaning of profit is that which exceeds the capital, and what does not exceed it is not profit. We know of no disagreement regarding this. As for the worker’s ownership of his share of the profit upon its mere appearance before distribution, the evident view of the Madhhab is that it is established. This is what al-Qadi mentioned as the Madhhab, and Abu Hanifah held this view. Abu al-Khattab narrated another narration, that he does not own it except upon distribution, which is the Madhhab of Malik. For al-Shafi'i there are two sayings, like the two Madhhabs. Those who did not grant him ownership argued that if he owned it, he would be exclusively entitled to its profit, and he would have to be a partner to the owner of the capital, like two partners in a Shirkat al-'Inan (partnership of equals). Our argument is that the condition is valid, so its implication is established, which is that he has a portion of the profit; thus, when it is found, it is necessary that he owns it by virtue of the condition, just as the Musaqi (worker in sharecropping) owns his share of the fruit upon its appearance, and by analogy to every valid condition in a contract. Furthermore, this profit is owned, so it must have an owner, and the owner of the capital does not own it by consensus, and the rulings of ownership are not established in his favor; therefore, it must belong to the Mudarib. Moreover, he possesses the right to demand distribution, so he is an owner like one of the two partners in Shirkat al-'Inan. It is not impossible for him to own it while it remains a protection for the capital, like the owner of the capital's share of the profit; through this, his exclusive entitlement to its profit is prevented, and because...