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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 7 · Page 181

Translation · EN

this. Al-Qadi Abu Ya'la said: The school [of thought] is what we have narrated, and the words of Ahmad are to be understood as him having validated the partnership in goods. It has been narrated from Malik that he returns to a loan (qirad) of the equivalent. It is also narrated from him: If he does not profit, he has no wage. The implication of this is that if he does profit, he is entitled to the lesser of what he stipulated for himself or the fair wage for his work. It is possible that something similar is established in our school; because if the lesser amount is what he stipulated, he has already consented to it, so he does not deserve more than it, just as if he had volunteered to perform the extra work. For us, the designation of profit is among the consequences of Mudaraba, or it is one of its pillars. Therefore, when it becomes corrupt, its pillars and consequences become corrupt, like prayer. We do not concede that in marriage, the named [share] is obligatory if the contract is corrupt, and if the named [share] is not obligatory for him, the fair wage is obligatory; because he only worked to receive the named [share], and when the named [share] is not obtained, his work must be returned to him, and that is impossible, so its value becomes obligatory, which is the fair wage, just as if they had entered into a corrupt sale, took possession of [the items], and one of the two compensations perished in the hand of the possessor, its value would be obligatory. According to this, it is the same whether profit appears in the wealth or not. However, if the Mudarib consents to working without compensation, such as if he says: 'I have entered into a Mudaraba contract with you, and the profit is entirely mine,' then the correct view is that the Mudarib receives nothing here; because he volunteered his work, so it is similar to if he assisted him in something, or acted as an agent for him without a fee, or purchased goods for him. The third issue concerns liability (daman), and there is no liability upon him for anything that perishes without his aggression (ta'addi) or negligence (tafrit); because that which was guaranteed in its valid state is guaranteed in its corrupt state, and that which was not guaranteed in its valid state is not guaranteed in its corrupt state. Al-Shafi'i held this view. Abu Yusuf and Muhammad said: He is liable. For us, it is a contract in which he is not liable for what he takes possession of in its valid state, so he is not liable for it in its corrupt state, like agency (wakala). Furthermore, when it becomes corrupt, it becomes a hiring (ijara), and a hired person is not liable for the destruction of property that occurs without his aggression or action; therefore, it is the same here. As for partnership when it becomes corrupt, we have already mentioned it before this.

Notes

(22) In the original: "Qirad" (loan for trade). (23) In the original: "and it implies". (24) In B, an addition: "return".

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