Islamic Fiqh > Companies and leases > The conditions of the company (shirkat al-amwal) > The conditions of validity of the mufawada with the Hanafis
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This being established: if they earn, each of the two owns exclusively what he earned and is liable for what he destroyed or usurped; for this contract is like its non-existence. If they use the word mufawada intending the 'inan partnership, the established ruling is that of what they intended.
The conditions of validity of the mufawada partnership with the Hanafis:
In every case where the mufawada is not valid for lack of one of its conditions, which is not required in the 'inan, it becomes 'inan.
If one of them inherits wealth, the partnership is valid in it; or if it is given to him and it reaches his hand, the mufawada is annulled and becomes 'inan; if he inherits goods, they are his and the mufawada is not vitiated, likewise real estate.
The mufawada is concluded upon the agency and the suretyship: what each of the two buys is at the account of the partnership, except his family's food and their clothing, his own clothing, and condiments; the seller may take the price from whichever of the two he wishes: the buyer as principal, his companion by suretyship; the buyer has recourse for his share over what he paid, according to Abu Hanifa and Malik.
Whatever binds each of the two of debts as the payment of what is shareable, the other guarantees it to him, for the realization of equality; for the partnership is concluded upon the suretyship, as though he had stood surety for him for its payment; he may therefore be claimed for it, and what is meant is the payment of the thing in which sharing is valid, so much so that if he buys the hobble ('iqal) his partnership is annulled. What sharing is valid in: sale, purchase and hiring; what it is not valid in: the offense, marriage, khul', settlement for intentional blood and maintenance. On this basis, if one of the partners marries, that binds him alone, for the partnership cannot apply to him, and the woman may not claim the mahr from his partner, for it is the payment of what is not shareable. Likewise if one of them commits an offense against a human being, it binds him alone, the offense not being of trade; but if he commits one against a mount or a garment, his partner is bound, for he holds the victim through liability, and that is shareable.
If one of the two stands surety with property for a third party upon his companion's command, his companion is bound according to Abu Hanifa (may Allah have mercy on him); Abu Yusuf and Muhammad say: he is not, like lending and suretyship by one's person.
According to Abu Hanifa (may Allah have mercy on him): he binds his companion in lending; and if the suretyship is without his command, the companion is not bound according to the sound view; and the liability of usurpation and borrowing is like suretyship upon command with Abu Hanifa (Bada'i' as-Sana'i' 6/61; al-Ikhtiyar 3/14-15; al-'Inaya 8/250; al-Jawhara an-Nayyira 3/421, 423; al-Lubab 1/524-525; Mukhtasar al-Wiqaya 2/180; Majma' al-Anhar 2/547; Majma' ad-Damanat 2/632-633).
As for their mufawada [with an apostate], al-Quduri (may Allah have mercy on him) mentioned that it behoves that it not be permitted. With Abu Yusuf, it is because the diminution of ownership prevents the mufawada, like the mukatab: their ownership is deficient, as said, so they are like two mukatabs. With Muhammad, it is because the apostate is with him like one mortally ill, whose suretyship is valid only from the third, whereas the mufawada requires the absolute permissibility of suretyship.
If a Muslim partners a Muslim and then one of them apostatizes: if he is killed, dies or joins the abode of war, the partnership is annulled; if he returns before that, they remain in the partnership; for when he is killed, dies or joins the abode of war, his properties vanished from the moment of his apostasy with Abu Hanifa, as though he had died: his partnership is annulled even if he returns to Islam, the reservation having ceased and the apostasy being treated as though it never was. This is why Abu Hanifa said: if the apostate of the two acknowledges and is then killed, his acknowledgment does not bind his partner, ownership being ruled as vanished from the time of apostasy, his acknowledgment having occurred after the partnership's annulment. According to the two companions' view, his acknowledgment is valid upon his partner, likewise his sale and purchase; for the partnership with them is annulled only by killing or joining, so it subsisted before, and his dealing and his acknowledgment take effect (Bada'i' as-Sana'i' 6/61-62).
What is permitted to one of the partners of the mufawada and what is not: it was set out, in the 'inan partnership, what is permitted or not to each partner in the partnership's wealth, and there was mentioned what is permitted to the partners of the mufawada.
With the Malikis it is the following, already set out in detail. They say: one of the two negotiators may dispose gratuitously of the partnership's wealth without his partner's authorization, by something like a gift (hiba) and a small charity (hatita) over part of the price, in charity, if he seeks through this gratuity to win people's hearts for the trade.
He may advance funds from the partnership's wealth, by giving someone a sum of it to buy him goods from such a land.
He may lend, by giving money to another as a loan when the wealth is ample, otherwise he is prevented; and he may place a deposit of it for a cause requiring the deposit, otherwise the deposit would be guaranteed were it to perish.
He may share with a third party in a specific thing where his hand does not range over wealth for the partnership.
He may accept the defective item if he or his partner sold it and it was returned for defect, even if the other refuses.
He may acknowledge a debt resting upon him out of the partnership's wealth to one against whom no suspicion lies, and it binds his other partner; it does not bind, however, for one against whom suspicion lies, like a son, a wife or an ingratiating friend: it does not bind his companion.
He may sell goods of the partnership's wealth on credit, that is, for a price at a known term.
Purchase on debt is not permitted to him; for if he buys on a debt in his liability to the partnership without his partner's authorization, the latter has no part of its profit and bears nothing of its loss; for both belong to the partnership of liabilities (dhimam), which is not permitted, lest his partner consume the profit of what he did not guarantee or be charged with what is not upon him; the debt's guarantee resting with the buyer alone.
The Hanbalis say: the partnership of bodies is of two types. The first: that two or more share in what they accept with their bodies within their liabilities as work, like craftsmen partnering to ply their crafts in what Allah grants, which is between them. The second: that they share in acquiring free things, like gathering firewood, hunting, lurking against the abode of war, such as spoiling one whom they kill in the abode of war (al-Mughni 5/4; Kashshaf al-Qina' 3/618-619; Sharh Muntaha al-Iradat 3/591-592).
The jurists differ over the status of the partnership of bodies: is it permitted or not? The majority of jurists, the Hanafis, the Malikis and the Hanbalis in the madhhab, hold the partnership of bodies permitted when the craft agrees, like a blacksmith with a blacksmith, a carpenter with a carpenter, and so on.
The proof of this partnership's permissibility: what Abu 'Ubayda narrated from Abdallah ibn Mas'ud (may Allah be pleased with him), who said:
I partnered with Ammar and Sa'd in what we would obtain on the day of Badr; Sa'd came back with two captives, while I and Ammar came back with nothing.Narrated by Abu Dawud (3388), an-Nasa'i (3937, 4697), ad-Daraqutni (3/34), Ibn Majah (2288) and Ibn Abi Shayba (7/365); a weak hadith with a disconnected chain, for Abu 'Ubayda did not hear from his father.
And because work is among that upon which the mudaraba is permitted, the partnership over it is therefore permitted from both aspects like wealth; and because it is one of the two roots of the qirad contract like wealth; and because the purpose of the wealth partnership is work, the proof being that the growth of wealth and the deserving of profit occur through work, and that were they to stipulate the work of one of them [alone], it would not be permitted; and were they to stipulate the wealth from one and the work from the other, it would be permitted and would be a mudaraba. This being valid, it follows that when they partner in the body's work, the partnership must be valid for concluding the contract upon the intended aspect, which is its root; and because work is a type of partnership, it is therefore valid that it come from one of the two partners and that profit be deserved through it, by analogy with the mudaraba; everything from which profit may be gained for one of the two is shareable like wealth.
And because people practise this type of partnership in all eras and lands without disapproval from anyone, which becomes a consensus; and because it contains the agency, and the agency is permitted, what contains the permitted is permitted.
And because it is a type of partnership, some form of it must therefore be valid, like the wealth partnership.
This partnership was not legislated for making wealth grow but for acquiring the wealth itself; the need to acquire the wealth surpasses the need to make it grow; having been legislated for acquiring the description, its legislation for acquiring the root is more worthy still.
And because the body's work is a root from which wealth may be gained on its own, and wealth a branch upon it that grows only with work; the partnership being valid in wealth, it is all the more valid in the bodies' works; and because the worker in the qirad is a partner by his body in wealth unlike his work, the partnership in similar bodily works is more worthy still.
And because many of the Muslims' interests are not organized without it, like the craftsmen partnering in shops, the brokers and others: no one of them can manage people's works alone, he needs a helper, and the helper's wage and work cannot be appraised, as in the mudaraba and the like; they therefore need to partner (Bada'i' as-Sana'i' 6/58; Mukhtasar Ikhtilaf al-'Ulama' 4/10; Majma' ad-Damanat 647-648; al-Ma'una 2/142-143; al-Ishraf 3/68-69; at-Talqin 2/414; al-Mughni 5/4; al-Kafi 2/262; Majmu' al-Fatawa 30/99; Bidayat al-Mujtahid 2/192; al-Ifsah 1/447).
The Shafi'is say: the partnership of bodies is void, whether the two crafts agree or differ, like the tailor and the carpenter; for each is distinct by his body and its benefits, appropriating his benefits as if they partnered in their livestock, which is distinct so that offspring and young be between them; it is not valid. And by the Prophet's (peace be upon him) prohibition of gharar: the partnership of bodies is a gharar, for one may work and the other not, or one work less than the other; and because it is a partnership stripped of any shared element at present, it must therefore be void, its origin being when they partner in what they gather together; and because it is a partnership in the benefits of distinct goods, it must be void if they partner in two camels they do not hire out while sharing their hire.
And because the purpose of the bodies partnership is work, as the purpose of the wealth partnership is wealth: as ignorance of the amount of wealth requires the partnership's invalidity, ignorance of work must require the partnership's invalidity; now work is unknown in every state, for what each does is not appraised, and he may fall ill and not work.
Two qiyases free this argument from its ailment: the first, that ignorance falling upon each one's share prevents the partnership's validity, as if they mixed two capitals whose amount they do not know. The second, that it is an exchange which, were it over wealth, would be void through ignorance, so it must be void through ignorance when over works, its origin being: "I hired you to build for me on condition that I advance you no capital".
If they do that and earn: one considers whether they worked alone, each then having his own earning; otherwise the proceeds are divided by the measure of the wage of the like, not according to the stipulated condition (al-Hawi al-Kabir 6/479; Rawdat at-Talibin 3/477; al-Bayan 6/371-372; Mughni al-Muhtaj 3/183; an-Najm al-Wahhaj 5/8; Bidayat al-Mujtahid 2/192; al-Ifsah 1/447).
Sheikh al-islam Ibn Taymiyya (may Allah have mercy on him) was asked about one who governs some of the Muslims' affairs and whose madhhab does not permit the partnership of bodies: may he prevent people from it? He answered: he may not prevent people from that or its like among matters wherein ijtihad is lawful; there is no text from the Book, the Sunna, consensus or anything equivalent forbidding it, all the more as most scholars permit it and it is what the generality of Muslims have practised in most lands. It is as the ruler cannot overturn another's ruling in such matters, nor can the scholar or the mufti compel people to follow him in them. That is why, when ar-Rashid consulted Malik about compelling people to his position in such matters, the latter prevented him and said: the Companions of the Messenger of Allah (peace be upon him) dispersed through the lands, and each people took of knowledge what reached them. A man composed a book on disagreement; Ahmad said: do not call it "Book of Disagreement", but call it "Book of the Sunna". That is why some scholars used to say: their consensus is a decisive proof and their disagreement a vast mercy. Umar ibn Abd al-Aziz used to say: I would not like the Companions of the Messenger of Allah not to have differed; for if they agree upon a view and a man contradicts them, he is astray; and if they differ, one man taking this view and another that, there is breadth in the matter. Imams other than Malik said the like: the jurist may not compel people to his madhhab. That is why the classifying scholars, of commanding good and forbidding wrong, among al-Shafi'i's companions and others, say: such ijtihadi matters are not repudiated by force, no one may compel people to his view in them; one argues in them with scholarly proofs; whoever sees the soundness of one of the two views follows it, and whoever imitates the other school incurs no reproach. Similar matters are many: the people's dispute over selling fresh basil in its husk, selling bulk produce at one price, the mu'ata sale and the terminating salam, using much water after impurity has fallen into it without changing it, wudu after touching the male or female organ, impurities exiting other than the two passages, loud laughter and the nullification of wudu thereby, recitation with the basmala in secret or aloud or its omission, the impurity or purity of the urine of animals whose flesh is eaten and their young, selling absent goods by description or omitting it, tayammum with one or two strikes up to the elbows or shoulders, tayammum for each prayer or for the time of each prayer or one tayammum sufficing, and accepting the dhimmis' testimony of one another or preventing it. Of this chapter are the goods partnership, the wujuh partnership and the musaqat over all kinds of trees and over the white land; these matters are of the species of the bodies partnership, and the preventers of these partnerships are more numerous than the preventers of the bodies partnership. Yet the Muslims, from their Prophet's era until today, in all eras and lands, have gone on dealing through them and through the musaqat, with no one condemning them; were people prevented from such dealings, many of their interests would be paralyzed, their religion and their world not being completed except through them.
The partnership of bodies, as said previously, is permitted, like tailoring, weaving and trade, under conditions.
The jurists who permit the partnership of bodies, the Hanafis, the Malikis and the Hanbalis, agree that the partnership is valid when the craft unifies, like two tailors, two carpenters or two blacksmiths.
They then differ if the crafts differ, like a carpenter with a blacksmith. The Hanafis, contrary to Zufar, and the Hanbalis in the madhhab hold it permitted, whether the crafts agree or differ; for they partnered in a lawful earning, valid therefore as if the crafts agreed; for in identical crafts one of the two men may be more skilful, and one may accept what the other cannot perform, without that preventing validity; the same applies when the two crafts differ.
The validity of this is shown by the fact that if one of the two says "I accept the works and you perform them", the partnership is valid and each works independently of his companion's work. [On this Abu Hanifa used to give the fatwa of prohibition, then adhere to the view of permissibility, saying: people do not follow my word in this prohibition; his two companions thus adopted permissibility, as chosen by some of al-Shafi'i's companions and others. End. May Allah have mercy on him. Majmu' al-Fatawa 30/79, 82.]
And because the deserving of the wage in this partnership occurs through the liability for the work, the work being charged to both whether the works agree or differ.
The Malikis, Zufar among the Hanafis and Abu al-Khattab among the Hanbalis require unity of craft, the partnership not being valid between a carpenter and a blacksmith; for the bodies partnership was permitted for mutual aid, which vanishes when the crafts differ; each would then be selling half his earning for half his companion's earning without necessity.
Because one of the two has no companionship in sharing with the other, has no need of his aid, and his earning is not tied to his work; he would intend only gharar and gambling; and because each of the two shares with the other what he earns alone so that the other shares him in the like; it is therefore not valid, its origin being: "trade with your wealth for yourself and I trade with my wealth for myself; what I gain, half of it is yours, and what you gain, half of it is mine".
Because its import is that what each of the two accepts of work binds him and binds his companion, both being claimable for it; if one accepts something while their crafts differ, the other cannot perform it; how then would his work bind him, and how could he be claimed for what he has no power over?
The Malikis however permit this partnership if their works are interdependent: one weaves and the other spins or turns; one moulds and the other casts for him; one dives for pearls and the other holds the line and rows; interdependence meaning the dependence of one work upon the other (Bada'i' as-Sana'i' 6/65; Mukhtasar Ikhtilaf al-'Ulama' 4/10; al-Jawhara an-Nayyira 3/434; Mukhtasar al-Wiqaya 2/183; Majma' ad-Damanat 647-648; al-Ma'una 2/143; al-Ishraf 3/70, no. 928; at-Talqin 2/414; adh-Dhakhira 8/31; "Sharh Mukhtasar Khalil" 6/51; "Tahrir al-Mukhtasar" 4/256; "Ash-Sharh as-Saghir" with as-Sawi's gloss 8/17; al-Mughni 5/4; al-Kafi 2/262; Kashshaf al-Qina' 3/618; ar-Rawd al-Murbi' 2/78; Sharh Muntaha al-Iradat 3/593; Bidayat al-Mujtahid 2/192; al-Ifsah 1/447).
The jurists differ: must the two craftsmen be in one and the same place, or may each of them be in a place other than the other's?
The Hanafis and the Hanbalis hold that unity of place is not required; for the meaning permitting the partnership, namely the acquisition intended, possible through delegation, does not vary with the place's unity or difference; if one partner works in a shop and the other in another, the situation does not vary; it is evident.
The Malikis say: it is not required that they be in one place if cooperation occurs between them, even in two places, each one's hand ranging over what his companion has, like two tailors in two shops, each taking what his companion has; for the purpose of sitting in one single place is only mutual aid. If no cooperation occurs between them, it is permitted only in one place; equality in work being taken into account, and companionship and mutual aid being possible only in that way, it must be considered (Mukhtasar Ikhtilaf al-'Ulama' 4/10; Sharh Fath al-Qadir 6/187; al-'Inaya 3/434).
The validity of the bodies partnership requires equality in work: each takes by the measure of his work when it is unified, and by the value of his work otherwise; if one's work is a third and the other's two thirds, and each takes of the yield according to what he worked, it is permitted. The equality intended is not that each one's work equal the other's, near-equality equaling equality: if one's work approaches a third and the other's exceeds two thirds, on condition that the one takes a third's measure and the other two thirds, it is permitted, near-equality being referred to the experts.
A slight difference in work is excused with equal profit between them: for instance one's work being a little under half and the other's a little over, or one's a little over a third and the other's a little under two thirds, with division into a third and two thirds (al-Ma'una 2/143; "Sharh Mukhtasar Khalil" 6/51; "Tahrir al-Mukhtasar" 4/256; "Ash-Sharh as-Saghir" with as-Sawi's gloss 8/17).
4. Sharing in the tool: the Malikis state that they must share in the tool of work, like the axe, the adze, the hammer and the like, whether by ownership or by hire from others, or one owns the tool and his companion rents half from him; if the tool belongs to one of the two alone, it is not permitted ("Sharh Mukhtasar Khalil" 6/51; "Tahrir al-Mukhtasar" 4/256; "Ash-Sharh as-Saghir" with as-Sawi's gloss 8/17).
Al-Kasani (may Allah have mercy on him) said: if a man installs in his shop a man who provides him work for half, the qiyas is that this partnership is not permitted; for it is a partnership of goods, the work coming from one and the shop from the other, and the shop is of the genus of goods, a partnership not permitted.
By istihsan it is permitted; for this is a partnership of works, a partnership of acceptance: the acceptance of work on the shop-owner's part is work, and the partnership of works is permitted without dispute among our masters; for it rests upon the agency, which is permitted on this aspect: a tailor or a fuller may delegate an agent who accepts tailoring and fullering works for him; likewise any craftsman working for a wage may delegate an agent who accepts the work.
If the two have a dog and send it together, whatever it catches is between them, for their equality in the cause of deserving.
If the dog belongs to one of the two and is in his hand, and they send it together, what the dog catches belongs exclusively to its owner; for the third party's sending counts for nothing alongside the owner's, it is treated as nothing, as though the owner had sent it alone.
If each of the two has a dog and each sends his own and they catch one single game, there are between them two halves, for they are equal in the cause of deserving; if the dog of either catches game on its own, it is exclusively his, for it is his ownership by his own act.
On this basis: if two men partner, one having a mule and the other a camel, for hiring them out, whatever Allah grants being between them, hiring them for a known wage for a known work and a known load: this partnership is void, and the wage is divided between them by the like of the mule's hire and the like of the camel's hire.
The partnership is void because the agency on this aspect is not valid. Do you not see that the one who says to another: "hire out your camel with the wage between us", for him the agency is not valid, and so the partnership; for the partnership is not valid over the bodies of animals, and likewise their benefits.
As for dividing the wage between them by the like of the mule's hire and the camel's hire, it is because, the partnership being void, the hire is valid, having fallen upon known benefits for a known payment; the wage's status is to be divided by the value of the benefits, as the price is divided by the value of two different sold goods; even if they did not hire out the mule and the camel but accepted a known load for a known payment and carried it: the wage is between them in halves; for this is a partnership of work, the load having become charged to both by the contract like the work of tailoring and fullering; the payment is therefore between them by the measure of the liability, and they are equal in liability, hence in the wage; the camel's load exceeding the mule's counts for nothing, as the abundance of one partner's work in a crafts partnership counts for nothing; for the payment matches the liability, the mule and the camel being here the tool of delivering the work.
If one hires out his camel alone, the hire is its owner's, not the mule-owner's; likewise if he hires out the mule alone, the hire is the mule-owner's; for the contract fell upon the camel's and the mule's benefits with their owners' authorization, the hire is therefore his; if the hirer helped him with loading and transport, the helper deserves the wage of the like, for he collected his partner's benefit through a void contract.
Then, with Abu Yusuf (may Allah have mercy on him), it does not exceed half the wage for which he hired it out; Muhammad said: he has the wage of the like, however great, according to what was said in the firewood-gathering partnership.
Two fullers: one has the fullering tool, the other a house; they partner to work with the one's tool in the other's house, the gain being between them in halves: this is permitted, and likewise the goldsmiths, the tailors and the dyers; for the wage here is a payment for the work, not for the tool; the work has become charged to both, its payment is therefore theirs; one aids the other with half the tool, and the other aids him with half the shop; this parallels the preceding question, accepting a load and carrying it on their mounts.
If they partner, one having a mount and the other a folding seat and saddle bags, for hiring out the mount with the wage in halves between them: the partnership is void, the mount's hire is its owner's, and the other has with him the wage of the like according to all their views. The partnership is void because the agency on this aspect is not valid, and so the partnership; as for the wage, because it is the payment for the mount's benefits, it is its owner's, he having collected the other's tool's benefits through a void contract, and so owes its wage of the like.
If one hands a mount to a man to hire it out with the wage between them, it is void: the wage is the mount-owner's and the hirer has the wage of the like.
Likewise the ship and the house; for the agency on this aspect is not valid, so neither is the partnership, and the wage is the mount-owner's; for the contracting party contracted upon another's property by his command; and the man has the wage of the like, the mount-owner having collected its benefits through a void contract. Likewise if he handed him the mount to sell food from it with the profit in halves: it is void, the profit is the goods-owner's and the mount-owner has the wage of its like.
Likewise the house: the gain occurred through his work, and he collected the mount's benefit through a void contract, so he owes its hire. Agreement of work is not required for this partnership's validity: it is permitted whether their works agree or differ, like a tailor with a fuller; such is our masters' view.
Zufar (may Allah have mercy on him) said: this partnership is not permitted save with unity of craft, like the fullers and the tailors, founding that the partnership is permitted with two different capitals with us, likewise with two different works; and with him it is not permitted with two different capitals, likewise not with two different works; the sound view is ours, for the deserving of the wage in this partnership occurs through the liability for the work, the work being charged to both whether the works agree or differ; and Allah knows best (Bada'i' as-Sana'i' 6/64-65).
The majority of jurists, the Hanafis, the Malikis and the Hanbalis, say: each of the work partners is bound by what his companion accepted, and bound to the liability of what his companion accepted without his authorization.
The Hanafis say: what each of the two accepts of work binds him and binds his partner; for each of the two accepts originally for himself and by delegation for his partner. Its benefit: each of the two may claim the work and claim the wage, the payer being discharged by paying him; the garment's owner may therefore take the partner by his work, and the partner who did not accept the work may claim the garment's owner for the wage, the payer being discharged by paying him the wage, even if his own work was what he had accepted (al-Jawhara an-Nayyira 3/434; Sharh Fath al-Qadir 6/188; Mukhtasar al-Wiqaya 2/183; Majma' ad-Damanat 647; al-'Inaya 8/298-299).
The Malikis say: each of the work partners is bound by what his companion accepted: the work of one binds the other, and he is bound to the liability of what his companion accepted without his authorization; for they became like one man: whatever is lost or perishes from either, they both guarantee it. If they separate, what they both accepted, or one of them, during their union, is in their joint liability.
This, when he accepts it in his companion's presence, or during his near absence like two days, or during his near illness, both of which annul [the partnership]; if he accepts it during his long absence or long illness, his companion is not bound by its liability, nor by the work with him ("Ash-Sharh al-Kabir" 5/26; "Sharh Mukhtasar Khalil" 6/53; "At-Taj wa-l-Iklil" 4/162; "Tahrir al-Mukhtasar" 4/260; "Ash-Sharh as-Saghir" with as-Sawi's gloss 8/21).
The Hanbalis say: what one of the two accepts of work falls into their joint liability, both claiming it, and his work binds them both; for this partnership rests upon liability, as though it contained that each of the two guarantees to the other what binds him.
The one of the two ignorant of that work must stand in his place in the work, so that the purpose be achieved for each of the partners and for the hirer.
If one of the two says: "I accept and you work", the partnership is valid, the acceptor's liability being made like the wealth.
Each of the two may claim the wage for work he or his companion accepted; the hirer may pay it to either and is discharged by paying one of them; for each is like the other's delegate.
If the wage perishes in one's hand without negligence, it belongs to their joint liability and is lost upon both; for each is the other's delegate in claiming and receiving.
What perishes of the goods or of the wage through one's aggression or negligence, or is under his hand in a way requiring his liability, like refusal or denial, is at his own charge, for he alone holds what requires liability.
If one of the two acknowledges what is in his hand of goods, his acknowledgment is accepted against him and against his partner, the hand being his; unlike acknowledgment of what is in his partner's hand, or of a debt upon his partner; for he has no hand over that (Kashshaf al-Qina' 3/618; ar-Rawd al-Murbi' 2/78; Sharh Muntaha al-Iradat 3/592-593).
The jurists differ over partnership in free things, like gathering firewood and hunting: is it permitted or not?
The Malikis and the Hanbalis hold that partnership in acquiring free things is valid: gathering firewood, hunting, lurking against the abode of war and the other free things, like fruits taken from the mountains and the mines; for what Abu 'Ubayda narrated from Abdallah ibn Mas'ud (may Allah be pleased with him), who said:
I partnered with Ammar and Sa'd in what we would obtain on the day of Badr; Sa'd came back with two captives, while I and Ammar came back with nothing.Narrated by Abu Dawud (3388), an-Nasa'i (3937, 4697), ad-Daraqutni (3/34), Ibn Majah (2288) and Ibn Abi Shayba (7/365); a weak hadith with a disconnected chain, for Abu 'Ubayda did not hear from his father.
Nothing of the like was hidden from the Messenger of Allah (peace be upon him), and he ratified them upon it; for the spoils of Badr belonged to whoever took them before Allah apportioned them between them; this is why it is transmitted that the Prophet (peace be upon him) said: "Whoever took something, it is his"; it was therefore of the free things: whoever preceded to take something, it is his. They therefore partnered in a lawful earning, in what is not a craft, valid therefore as if they had partnered in tailoring and fullering; nor do we concede that the agency is not valid in free things;
for it is valid to appoint a substitute in acquiring them for a wage, and likewise without compensation if one of the two does so gratuitously, like delegation in the sale of his own wealth.
And because it is a body partnership in a lawful earning that he gains, the partnership over it is thus permitted like tailoring; and because the need for mutual aid therein is like the need in the other crafts (al-Ishraf 3/70, no. 928; al-Ma'una 2/143; "Tahrir al-Mukhtasar" 4/258; al-Mughni 5/4-5; Kashshaf al-Qina' 3/619; ar-Rawd al-Murbi' 2/78; Sharh Muntaha al-Iradat 3/591-592; al-Ifsah 1/448).
The Hanafis hold that partnership in gathering firewood, in hunting and in begging people is not permitted: what either of the two catches or gathers of wood is his alone, to the exclusion of his companion; the same applies to partnership in every free thing, like taking firewood and fruits from the mountains, the walnuts, the figs, the pistachios and others; likewise transporting clay and selling it from free land, or gravel, salt, ice, kohl, minerals and the pre-Islamic treasures; for the partnership contains the meaning of the agency, and delegation in taking free wealth is void: whatever the agency is permitted in, the partnership is permitted in, and whatever it is not permitted in, the partnership is not; for the granter's command is not valid, and the delegate becomes owner without his command, so he cannot stand in his place. Ownership for the two is established only through taking and securing the free thing: if they take together, there are between them two halves for their equality in the cause of deserving; if one takes and the other does nothing, it belongs to the worker; if one works and the other aids him in his work, one plucking and the other gathering, or plucking and gathering while the other carries, the helper deserves the wage of the like, not exceeding half its price according to Muhammad and Abu Yusuf (may Allah have mercy on them) (Bada'i' as-Sana'i' 6/63; al-Jawhara an-Nayyira 3/436-437; al-'Inaya 8/305; Sharh Fath al-Qadir 6/191; Mukhtasar al-Wiqaya 2/184-185).
The Hanafis say: if one of the two works without the other, whether through illness, travel or idleness, the wage is between them as they stipulated; for the wage in this partnership is deserved only through the liability for the work, not through the work itself; for work may come from him or from another, like the fuller and the tailor: if he obtains a man's help for the fullering and tailoring, he deserves the wage though he did not work, the liability for the work being in him. Here work is stipulated upon both: when one works, the accepting partner becomes a worker for himself in the half and for his partner in the other half. Stipulating disparity in gain is permitted if disparity in liability is stipulated: they stipulate for one two thirds of the gain, which is the wage, and for the other a third, and stipulate the work upon both likewise, whether the one granted the excess works or not after stipulating the work upon both; for the deserving of the wage in this partnership is through the liability, not the work, the proof being that if one of the two works, the other deserves the wage; the deserving of the wage's root being through the root of the liability for the work, not through work, the deserving of the wage's increase is through the increase of liability, not through the increase of work (Bada'i' as-Sana'i' 6/76; Tabyin al-Haqa'iq 3/321).
The Hanbalis say: if one of the two works without his companion, the gain is between them; for the work is charged to them together, and through their liability for it the wage became due, so it is theirs as the liability was upon both; the worker is then his companion's aid in his share, without that preventing his deserving, like one who hires a man to shorten a garment for him and who obtains a person's help who shortens with him: the wage belongs to the hiring fuller; the same applies here, whether he left the work through illness or otherwise. If one of the two demands of the other that he work with him or that he provide in his place someone who works, he has that; if he refuses, the other may dissolve.
Ibn Qudama (may Allah have mercy on him) said: it is likely that as soon as he leaves the work without excuse, he does not share with his companion the wage of what he worked alone; for he only partnered with him that they might work together: when one leaves the work and fulfils what he stipulated upon himself, he does not deserve what was assigned to him in return; this is likely when one leaves the work for an excuse, which cannot be guarded against (al-Mughni 5/6; al-Mubdi' 5/40; Manar as-Sabil 2/194; Matalib Uli an-Nuha 3/547).
The Malikis say: if one of the work partners falls ill for a day or two, or is absent likewise, and his partner works: if the illness or the absence is of the annulling kind, what the healthy present one worked is between them.
That is, the wage of the like is charged to him, the original wage being between them, the liability being upon both; its example: if they contract with a person to tailor a garment for ten dirhams and one is absent or falls gravely ill and the other tailors it: the ten dirhams are between them; it is asked: what is the wage of the like for tailoring this garment? If it is said: four dirhams for instance, he has recourse against his companion for two dirhams.
This applies to what they both accepted and then one's illness or absence occurred; likewise if one accepts with the other present, or during his annulling near illnesses.
What one of the two accepts after the other's long absence or long illness: the original wage is entirely his.
If the illness or absence increases and becomes excessive beyond two days, or, according to one opinion, beyond five, his work is not annulled and the worker has the greater right to it.
If they partner stipulating that whichever of them falls long ill or is long absent, what the other worked is between them: the partnership is void; if they work, what they partnered in is between them, and what one accomplishes alone, he has its wage exclusively, to the exclusion of the other.
If they did not stipulate it and one of them wishes to give his companion his share of what he worked, it is permitted.
Are the two days annulled from the long duration as the short duration, or not? The first is the view of some Qurubiyyin, the second that of al-Lakhmi ("Ash-Sharh al-Kabir" with ad-Dasuqi's gloss 5/27-28; "Sharh Mukhtasar Khalil" 6/54; "Tahrir al-Mukhtasar" 4/260-261; "Mawahib al-Jalil" 7/77; "At-Taj wa-l-Iklil" 4/163; "al-Bahja fi Sharh at-Tuhfa" 2/354).
In "al-Mudawwana", concerning two craftsmen or partners working with their hands, one of whom falls ill or is absent: I said: what do you say of two fullers, two blacksmiths, or the people of all crafts partnering over what Allah grants between them, when one falls ill and the other works? He said: Malik said: if they partner and are in a shop, one falls ill and the other works, the work is between them, with no harm in it; likewise if one is absent a day or two and the other works: the work is between them; for this is a permitted matter between partners.
Ibn al-Qasim (may Allah have mercy on him) said: but if his illness lengthens and the like, and the absence lengthens, it becomes excessive: if the healthy present one works and wishes to give half the work to his absent or ill partner, there being in the partnership's origin no condition such as "whichever of us falls long ill or is long absent, what the other works is between us", and there being no such condition and the worker wishing to give the ill or absent one half of what he worked, there is no harm; if the condition is between them, the partnership is void.
I said: is this preserved from Malik for the long illness and the long absence? He said: no, except that Malik said: partners cooperate in illness and busyness, and I took that as the light illness and the near absence. I said: if this condition is between them and the partnership void, what do they do with what they worked? He said: what they worked until the day of the illness or absence is between them by the measure of their work, and what the healthy one worked after the ill one, or the present one after the absent one, belongs to the worker, his companion having nothing of it (al-Mudawwana al-Kubra 5/51-52).
The wujuh partnership with the Hanafis: that two people partner without owning capital, but with standing among people and the merchants' trust in them, saying: "we partner to buy on credit and sell for cash, whatever Allah grants of profit being between us upon such condition"; this type is called the wujuh partnership because only the man of standing is customarily sold on credit; it may also be so named because each of the two faces his companion, both awaiting whoever will sell to them on credit (al-Mabsut 11/152; Bada'i' as-Sana'i' 6/57; al-Hidaya 3/11; al-Jawhara an-Nayyira 3/435; al-Ikhtiyar 3/20; Tabyin al-Haqa'iq 3/322).
The definition is the same with the Hanbalis: the wujuh partnership is that two partner in what they buy through their standing and the merchants' trust in them, without capital, what they buy being between them in halves, thirds or quarters; they sell it, and whatever Allah portions out is between them (al-Mughni 5/9; al-Furu' 4/301).
The Malikis say: it is that they partner without wealth or work, the partnership being upon the liabilities: when they buy something, it is within their liabilities; when they sell, they share the profit; whatever liability arises rests upon them (al-Ishraf 3/72, no. 931; "al-Qawanin al-Fiqhiyya" 1/187).
The Shafi'is explained it through several forms. The most famous: that two men of standing partner to buy upon liability at a term, what each buys being between them; they sell, pay the prices, and the remainder is between them. The second: that a man of standing buys upon liability and entrusts its sale to a man without standing (khamil), stipulating that its profit be between them. The third: that a man of standing with no wealth buys, and a man without standing possessing wealth, the work coming from the man of standing and the wealth from the other, the wealth remaining in the latter's hand without being handed to the man of standing, the profit being between them; Ibn Kajj and the Imam explained it through this third form. Close to it is what al-Ghazali mentioned: that the man of standing sells the other's wealth with an added profit so as to have a part of the profit (Rawdat at-Talibin 3/478).
Al-Nawawi said: in all these forms it is void, for there is between them no shared wealth to which recourse is had at division; and what one of the two buys in the first and second forms is his, he alone having its profit and loss, the other sharing in it only if he explicitly authorized the purchase by delegation intending his granter. As for the third form, it is not truly a partnership but a void qirad, the owner having arrogated the hand to himself; if the wealth is not in coin, the invalidity has yet another cause.
The Hanafis and the Hanbalis hold this partnership permitted, in consideration of the agency it contains; for the delegation of each to his companion for the purchase, the purchased being between them in halves or thirds, is valid; likewise the condition containing this agency, and people's practice of it without disapproval; and because it contains a benefit without harm.
The Malikis and the Shafi'is hold this partnership void; for its origin is non-legitimacy; and because the reality of the partnership is to share in a thing at the moment of the contract, whether wealth or body, both being absent here; it is therefore not valid, the contract not sufficing; for were they to assign the whole profit to one of the two, it would be impossible, with gharar in that; for each of the two offered his companion an unlimited gain by craft, without specific work.
And because what each of the two buys is a property of his, no one shares him in it; if one of the two authorizes his companion to buy him a specific or described object, showing him the price, and he buys intending him at the purchase, it belongs to the commander (al-Mabsut 11/152; Bada'i' as-Sana'i' 6/57; al-Hidaya 3/11; al-Jawhara an-Nayyira 3/435; al-Ikhtiyar 3/20; Tabyin al-Haqa'iq 3/322; Sharh Fath al-Qadir 6/190; Majma' al-Anhar 2/562; al-Ishraf 3/72, no. 931; adh-Dhakhira 8/29; "al-Qawanin al-Fiqhiyya" 1/187; Bidayat al-Mujtahid 2/192; Rawdat at-Talibin 3/478; al-Bayan 6/374; al-Mughni 5/9; Sharh az-Zarkashi 2/144; al-Furu' 4/301; al-Insaf 5/458-459; Sharh Muntaha al-Iradat 3/590-591; al-Ifsah 1/448).
The Hanafis and the Hanbalis differ over the profit: may one of the two have a profit greater than the other's?
The Hanafis and al-Qadi (Abu Ya'la) among the Hanbalis hold that the profit must be between them according to the measure of their ownerships: if they stipulate that the purchased be between them in halves or thirds, the profit is likewise, in halves in the form of halving the purchased and in thirds in the form of its thirding.
If they stipulate excess in the profit, the profit share of one exceeding the measure of his ownership, that condition is void; for the profit is by the measure of ownership in the purchased, and the excess is a profit over what was not guaranteed, which is not permitted; that is permitted in the 'inan only in consideration of the permissibility of one's excess work, a consideration valid only if the wealth is known, as in the mudaraba and the 'inan, which is not the case here.
And because this partnership is concluded upon the liability, and it is thereby that the profit is deserved to the extent of what each guaranteed by the contract: if they stipulate for one more than his share, it is not permitted; for it is a profit stipulated without wealth or work; the deserving of profit in the wujuh partnership being through the liability, and the liability by the measure of ownership in the purchased, the excess profit bears upon what was not guaranteed, so its stipulation is not valid, as preceded.
If they wish disparity in the profit, they must stipulate disparity in the ownership of the purchase: to one a third and to the other two thirds, so that each one's profit be by the measure of his ownership.
Al-Qadi (may Allah have mercy on him) said: the profit is between them by the measure of their ownerships in the purchased; for the profit deserves the liability, the partnership having fallen upon it alone, there being no wealth for them to partner in work and liability, with no disparity; disparity in profit is therefore not permitted.
The Hanbalis in the madhhab say: the profit is between them as they stipulated, in equality or disparity; for one of the two may be more trusted by the merchants and more discerning in trade; and because it is concluded upon work and other, its profit is therefore according to the stipulated condition, like the 'inan partnership.
And because it is a partnership containing work, whatever they agree upon in the profit is valid, like the other partnerships. As for al-Qadi's word "they have no wealth to work in", we say: they partner in order to work in the future upon what they will acquire through their standing, as the work in the other partnerships occurs only in what is to come; so it is here.
As for the loss (wadi'a), that is, ruin, by destruction or by sale at a loss of what was bought or otherwise, it is by the measure of their ownerships in what they buy with the Hanafis and the Hanbalis: whoever has two thirds of it bears two thirds of the loss, and whoever has a third, a third.
The Hanbalis say: whether the profit be between them so or not; for the loss is the diminution of the capital, specific to its owner, distributed between them by the shares (al-Mabsut 11/154; Bada'i' as-Sana'i' 6/65; al-Jawhara an-Nayyira 3/435; Mukhtasar al-Wiqaya 2/184; al-Lubab 1/543; Sharh Fath al-Qadir 6/190; al-Bahr ar-Ra'iq 197; Majma' al-Anhar 2/562; al-Mughni 5/19; Sharh az-Zarkashi 2/144; al-Furu' 4/301; al-Insaf 5/458-459; Kashshaf al-Qina' 3/616-617; Sharh Muntaha al-Iradat 3/591).
The Hanafis say: each of the two wujuh partners is the other's delegate in what he buys (al-Jawhara an-Nayyira 3/435; al-Lubab 1/543).
The Hanbalis say: validity does not require mentioning the genus of what they buy, nor its amount, nor the time of the partnership: if one of the two says to the other "whatever you buy of anything is between us" and another says the like to him, the contract is valid; the conditions of the agency are not taken into account, for it enters into the partnership's liability, by analogy with the mudaraba and the 'inan partnership.
Each of the two wujuh partners is the other's delegate in sale and purchase and his surety for the price; for it rests upon the agency, the suretyship and the ownership in what they buy, as established by the hadith: "The believers are bound by their conditions"; and because it is founded upon the agency, it is restricted to what the authorization and the acceptance fell upon.
Their dealings, both of them, in the permitted and the forbidden and the due, and the conditions, acknowledgment, litigation and the like, are like those of the 'inan partners, as set out previously (al-Mughni 5/19; Sharh az-Zarkashi 2/144; al-Furu' 4/301; al-Insaf 5/458-459; Kashshaf al-Qina' 3/616-617; Sharh Muntaha al-Iradat 3/590-591).