my slave, and enter into a Mudaraba with it.' Muhanna said: I asked Ahmad about a man who said: 'Lend me a thousand for a month, then after the month [is over], it shall be a Mudaraba?' He said: 'That is not valid.' This is because when he lends it to him, it becomes a debt upon him, and we have already mentioned that it is not permissible to enter into a Mudaraba with a debt that is upon him. If he said: 'Enter into a Mudaraba with it for a month, then take it back as a loan,' it is permissible, according to what we have mentioned previously.

Section: It is a condition of the Mudaraba that the capital be of a known amount. It is not permissible for it to be unknown or estimated (juzaf), even if they both see it. This is the view of al-Shafi'i. Abu Thawr and the people of opinion (Ashab al-Ra'y) said: It is valid if they both see it, and the statement is that of the agent (al-'amil) along with his oath regarding its amount; because he is the trustee (amin) of the owner of the wealth, and his statement is accepted regarding what is in his possession, so that stands in the place of knowledge of it. Our argument is that it is unknown, so the Mudaraba with it is not valid, just as if they had not seen it; this is because he does not know how much he will return at the time of settlement, and because it leads to dispute and disagreement regarding its amount, so it is not valid, as if it were in a bag. What they cited is invalidated by the Salam contract, and by the case where they do not see it.

Section: If he brings two bags, in each of which there is wealth of a known amount, and says: 'I have entered into a Mudaraba contract with you on one of them,' it is not valid, whether what is in them is equal or different; because it is a contract whose validity is prevented by uncertainty (jahala), so it is not permissible regarding something unspecified, like a sale.

839 - Issue; He said: (And if there is a deposit (wadi'a) in his possession, it is permissible for him to say: 'Enter into a Mudaraba with it.')

This is the view of al-Shafi'i, Abu Thawr, and the people of opinion (Ashab al-Ra'y). Al-Hasan said: It is not permissible until he takes possession of it from him, by analogy (qiyas) to debt. Our argument is that the deposit is the property of the owner of the wealth, so it is permissible for him to enter into a Mudaraba with him using it, just as if it were present. For example, if he said: 'I have entered into a Mudaraba contract with you using this thousand,' and pointed to it in the corner of the house. It differs from a debt, as the substance of the wealth does not become property of the debtor except by his taking possession of it. If the deposit had perished due to his negligence, and it became a liability (dhimma), it is not permissible for him to enter into a Mudaraba with him using it; because it has become a debt.