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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 7 · Page 130

Translation · EN

currency or a fungible item of the same genus as that which he bought with it, or if he had merchandise and incurred a debt in merchandise, then the purchase is for him exclusively; its profit is for him, and its liability is upon him, because he incurred the debt against the partnership's wealth, and he does not have the right to do that, based on what we have previously established. The most appropriate view is that whenever he possesses from the partnership's wealth that which enables him to pay the price by selling it, it is permissible; for it is possible for him to pay the price from the partnership's wealth, so it is similar to the case where he has currency, and because this is the custom of merchants and cannot be avoided. Does he have the right to entrust [the goods] to another for sale (ibda') or place them in deposit (ida')? There are two narrations: one is that he may do so, because it is the custom of merchants, and need may call for placing them in deposit. The second is that it is not permissible, because it is not part of the partnership, and it involves uncertainty (gharar). The correct view is that placing them in deposit is permissible when there is a need for it, because it is a necessity of the partnership, similar to handing over goods to a porter. Regarding agency (tawkil) in matters that he himself is authorized to handle, there are two views, based on the [discussions regarding] an agent. It is said that the partner is permitted to appoint an agent, unlike the agent [who cannot appoint another], because if it were permissible for the agent to appoint an agent, he would derive from the ruling of the contract something like the contract itself, whereas the partner derives from the partnership contract something that is more specific and less than that; for agency is more specific than a partnership contract. If one of them appoints an agent, the other has the right to dismiss him, because each of them has the right to dispose of his companion's share through agency, so he likewise has the right to dismiss [the agent]. Does one of them have the right to give a pledge (rahn) for a debt that is against both, or take a pledge for a debt that is owed to both? There are two views, the most correct of which is that he has the right to do so when there is a need; for a pledge is intended for fulfilling a debt, and taking a pledge is intended for receiving payment, and he possesses the authority to fulfill and receive payment, so he possesses the authority for what is intended for them. The second [view] is that he does not have that right, because it involves risk. There is no difference between whether it is someone who was party to the contract or someone else, because taking possession is among the rights of the contract, and the rights of the contract are not restricted to the person who concluded the contract, so neither are the things intended for it. Does he have the right to travel with the wealth? There are two views, which we shall mention in [the chapter on] Mudaraba. As for rescission (iqala), the most appropriate view is that he possesses the authority for it; for if it is a sale, he possesses the authority to sell, and if it is an annulment (faskh), he possesses the authority to annul it by returning [the item] due to a defect, when he sees that there is a benefit in it; therefore, he also possesses the authority to annul it

Notes

(36) Omitted from: the original, [A]. (37) In [B] and [M]: "to pledge". (38) Omitted from: [M].

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