Profit Reserved to the Two Parties

This part belongs to the full section: All sections of this part.

Profit Reserved to the Two Parties

4. Restricting the profit to the two contracting parties. The Shafi'is require the profit to be exclusive to the two contracting parties. If one says: "I propose qirad to you on condition that a third of the profit is yours, a third mine, and a third for my children or for a stranger", the condition and the contract are defective, unless it is stipulated that the one allotted a share of the profit work alongside the worker, in which case it is a qirad with two workers. If the stipulated beneficiary is the slave of one of the two, it is valid.

If one says: "Half the profit is yours, half mine, and of my share, half goes to my wife", it is valid, for what he gives of his share to his wife amounts to a promise of gift ( "Rawdat at-Talibin", 3/744 ; "Mughni al-Muhtaj", 3/346 ; "an-Najm al-Wahhaj", 5/266 ; "ad-Dibaj", 2/430-431 ).

The Malikis say: it is permitted to stipulate all the profit of the qirad for the capital owner, for the worker, or for someone other than the two of them; it belongs to the domain of gratuitous giving, the use of the word qirad then being metaphorical, with the clarifications already given. There appears in the "Muddawwana al-Kubra", on two qirad partners stipulating a third of the profit for the poor: "What do you think of two qirad partners who stipulate, at their mu'amala, a third of the profit for the poor; is that permitted? He said: yes. I said: may they retract what they allotted? He said: no, and it is not enforced against them, and I do not like, between them and Allah (exalted is He), that they retract their allotment" ( "al-Mudawwana al-Kubra", 12/91 ; "ash-Sharh al-Kabir with Hashiyat ad-Dasuqi", 5/289-290 ; "adh-Dhakhira", 6/43 ; "Tahbir al-Mukhtasar", 4/513-514 ; "Sharh Mukhtasar Khalil", 6/209 ; "ash-Sharh as-Saghir", 8/402-403 ).

The Hanafis say: if a portion of the profit is stipulated for the poor or for the mudarib's wife, the contract is valid but the condition is not, and what was stipulated reverts to the capital owner, for these people have no work entitling them to the mentioned profit. However, if the work of the mudarib's wife is stipulated in the mudaraba, she earns the stipulated profit in that case. Likewise, if giving a portion of the profit to whomever the mudarib wishes is stipulated: if he claims this portion for himself or for the capital owner, the condition is valid; if he claims it for a stranger, it is not valid, the stranger having no work entitling him to the mentioned profit. If the work of that stranger is stipulated, he earns the stipulated profit; likewise if a portion of the profit is assigned to him outright: if his work is stipulated, he earns the profit; if not, the mudaraba is valid, the stranger earns nothing, and his portion reverts to the capital owner ( "al-Bahr ar-Ra'iq", 7/267 ; "Majma' al-Anhar", 3/456 ; "ad-Durr al-Mukhtar", 5/654 ; "Durrar al-Hukkam", 3/484 ).

The Object of the Work

Fifth: the work. The scholars differed: must the work in the mudaraba be confined to earning profit through selling and buying, or is it valid for the worker to ply a craft with the wealth? The Malikis and Shafi'is forbid it; the Hanafis and Hanbalis permit it.

The Shafi'is say: the worker's function is trade, that is, earning profit through selling and buying, together with its customary adjuncts that usage makes him handle personally: folding the cloth, spreading it out, measuring it, placing it in the chest, weighing light goods such as gold, silver and musk, usage requiring this; it is not like heavy goods, whose weighing and the like are not his duty, nor their carrying and transport from the warehouse (khan) to the market, usage running to hiring for that.

What is not his duty, such as hiring for measuring or safekeeping, he may hire for out of the capital of the qirad, for it is part of the completion of trade and its interests; if he does it himself, he earns no wage. What is his duty, if he hires it out, the wage falls on his own wealth, not on the capital of the qirad; and if it is stipulated that the owner pay that hire out of the capital of the qirad, there are two views, the apparent one being invalidity.

Excluded from trade is the worker extracting profit by plying a craft. If the qirad is proposed to him to buy wheat, grind and bake it, or yarn to weave and sell, the qirad is defective in both cases: the qirad was legislated as a concession for need, and these crafts are regulated and can be hired for, so the concession does not cover them; the worker in them is not a trader but a craftsman, and this is not among the worker's functions.

If he buys the wheat and grinds it without any stipulation, the qirad is not rescinded over that on the sounder view; if he then grinds without permission, he earns no wage; if he hires it done, the wage binding on him, he becomes guarantor and bears the loss caused by the grinding; if he sells it, the price is not guaranteed against him, for he did not transgress his mandate; if there is profit, it is between them as they stipulated. If it is stipulated that the worker hire someone to do that out of the capital of the qirad, the worker having only the disposition, the view set out in the "Matlab" makes the permission apparent. Al-Azra'i (may Allah have mercy on him) said: this is open to examination, for the profit did not arise from the worker's disposition. The judge Husayn said: if the qirad is proposed on condition that he buy wheat, store it for a while and sell it when its price rises, that is not valid, for the profit is not produced by the disposition. Al-Khatib ash-Shirbini said: the like of it is in "al-Bahr", and this is the apparent view; even if he says: "on condition that you buy the wheat and sell it at once", it is not valid.

It is required that the owner not restrict the worker in disposition. He may therefore not stipulate the purchase of a specific good, such as this wheat or this garment, the purchase of a kind whose existence is rare, or dealings with a specific person: "Sell only to Zayd", "Buy only from him"; for this defeats the purpose: the specific good may not profit, the rare kind may not be found, and the specific person may not deal with him, or offer what is thought to hold profit. A kind whose existence does not grow rare is valid, even if perishable, like fresh fruits, the restriction being absent; and likewise if it is rare but found in a place in most cases. If he forbids him these things, that is valid, for he can buy other goods, and sell and buy apart from Zayd ( "Mughni al-Muhtaj", 3/343-344 ; "Nihayat al-Muhtaj", 5/254-255 ; "an-Najm al-Wahhaj", 5/262-263 ; "ad-Dibaj", 2/428-429 ; "Kifayat al-Akhyar", 341 ; "Hashiyat al-Bajuri on Sharh Ibn Qasim", 2/44 ).

The Malikis say: the worker owes what custom imposes, such as spreading and folding the two light garments, not the many; for what custom does not impose, if he hires it done, the fee is on his own wealth, not on the capital owner nor out of the profit; and light transport is like what was mentioned. If custom does not impose an act and he undertakes it for the owner's benefit, he is entitled to its wage if he claims it as his work; the capital owner contests it with an oath, for it is a claim over something known, so the oath falls upon the worker, the capital owner's claim being that the worker undertook it gratuitously; if it was for his silence, he does not swear. He may also hire out of the wealth if the work is abundant beyond what one man can bear of it, one his like would not do.

The capital owner may not stipulate the worker's manual work, the qirad being defective with the mentioned condition, the worker being owed a like-wage: stipulating that he sew garments, decorate sandals or perforate the hides bought with the capital of the qirad to trade in them and then sell them, the profit being between them; or that he enter partnership, lend for use, or sow out of the capital of the qirad: that is not permitted; if he does it, the qirad is defective, through the restraint and the added uncertainty in the work, and the worker is owed a like-wage on the capital owner's liability whether profit occurs or not.

There appears in the "Muddawwana" from Malik: the capital owner may not stipulate that the worker sit with the wealth in a shop of drapers or soap-sellers, working there and nowhere else, or sit in the market arcade (qaysariyya), or buy only from so-and-so, or trade only in such a merchandise whose existence is not assured, or sow: none of that is fitting; if he accepts all of it, the worker becomes a hired man, and whatever comes of sowing, surplus or loss belongs to the capital owner and is upon him. If the capital owner knows that he sits in a shop, that is permitted so long as he does not stipulate it.

If the worker sows without any stipulation on land bought with the capital of the qirad or taken on lease, that is permitted if the place is safe and just, and he does not guarantee; if he ventures it in a place of injustice and uncertainty which he sees as dangerous, he is guarantor. If the worker takes palm trees on musaqat and spends on them from the capital of the qirad, it is like sowing, and he is not a transgressor ( "Tahdhib al-Mudawwana", 2/184 ; "ash-Sharh al-Kabir", 5/286, 288 ; "Tahbir al-Mukhtasar", 4/510-511 ; "Sharh Mukhtasar Khalil", 6/207, 209 ; "at-Taj wal-Iklil", 4/415, 418 ; "Hashiyat as-Sawi", 8/402, 404 ; "Minh al-Jalil", 7/332 ).

The Hanafis say: if one thousand dirhams are handed over in mudaraba on condition that he buy clothes, cut them with his own hand and sew them, whatever Allah grants in that being between them in halves, that is permitted as they stipulated; for the stipulated work is among what merchants do with the aim of gaining profit, so it is like selling and buying. Likewise if he says to him: on condition that he buy hides and tanning bark and make them into sandals, buckets, pails and waterskins: all of that is the craft of merchants aiming at profit, so stipulating it in the mudaraba is permitted.

If wealth is handed over in mudaraba with an order to the mudarib to act by his own judgment, or without any order, and the mudarib leases fallow land with part of it and buys food with part and sows it in the land, that is permitted on the mudaraba, in the rank of trade; for the work of farming is among the crafts of merchants, by which they seek growth. The Lawgiver (peace and blessings of Allah be upon him) alluded to it: "The sower trades with Allah" (the source attribution of this saying was not identified). What is of the merchants' work, the mudarib owns by the absolute terms of the contract.

If he leases fallow land to plant it with trees or fresh dates, saying: "That belongs to the mudaraba", it is permitted, the loss being on the capital owner and the profit as they stipulated; for it is the work of merchants seeking to grow the wealth. If capital was handed to him in mudaraba for half, with the words: "Act by your judgment", and the mudarib took palm trees, trees and fresh dates in mu'amala on the basis of halves, then worked and spent the mudaraba capital on them: what comes out of that is in halves between the palm owner and the mudarib, and the capital owner has no share in it; for he earns the half only through the mu'amala contract, in which the worker hires himself out, and the owner of the wealth only entrusted the matter to his judgment for the mudaraba. The expense he incurred from his own wealth is his own, and he guarantees what he spent of the mudaraba capital, having directed it to his own need in a way not authorized by the capital owner.

If the mudarib takes fallow land from a man on condition of sowing it, half of what comes out of it belonging to the landowner and half to the mudaraba, then buys food with part of the wealth, sows it in the land, and spends the remainder of the mudaraba on it until it is exhausted, this is permitted: he has leased the land for half of its produce; and had he leased it for dirhams, the mudaraba would be valid; so likewise when he leases it for half its produce. His disposal here concerns the wealth: his entitlement to the produce rests on what he sowed, and the sowing is of the mudaraba capital; so half of the produce belongs to the landowner, and the other half is sold: the capital owner recovers his capital, and the remainder is between him and the mudarib on the stipulation. Had he not said to him: "Act by your judgment", the mudarib guarantees the mudaraba, for he has associated another in the mudaraba's wealth without right; we have shown that by the absolute terms of the contract the mudarib does not own the right of association, and it is as if he handed part of the wealth to another in mudaraba; having thus become a transgressor by his disposal, he guarantees the mudaraba capital, which is the property of the one guaranteed against. What comes out of the crop is therefore in halves between the mudarib and the capital owner on the stipulation ( "al-Mabsut", 22/54, 72-73 ; "Bada'i' as-Sana'i'", 6/95 ; "al-Hidaya", 4/4 ; "Tabyin al-Haqa'iq", 5/207 ; "Majma' ad-Damanat", 2/655 ; "al-Fatawa al-Hindiyya", 4/334 ).

The Hanbalis say: the worker must personally attend to all that custom makes the mudarib attend to personally: spreading the cloth, folding it, showing it to the buyer, bargaining with him, concluding the sale, receiving the price, counting it, tying the purse, sealing it and storing it in the chest, and the like; with no wage for it, the profit being his in return. If he hires someone to do it, the wage falls on him personally, for the work is upon him. As for what the worker does not customarily attend to, such as crying the goods in the street or transporting them to the warehouse, it is not his duty, and he may hire who will do it; for work in the mudaraba is not stipulated, on account of the hardship that stipulating it would bring, so recourse is to custom.

If the worker does what is not his duty gratuitously, he earns no wage; if he does it in order to be paid, he likewise has nothing on Ahmad's explicit text; on one view he would have the wage by analogy with the partner who singly undertakes work not incumbent on him, there being two narrations; the sound view is that he has nothing in either case: he worked on another's wealth with nothing set against it, like a stranger ( "al-Mughni", 5/32-33 ; "Kushaf al-Qina'", 3/585 ; "Sharh Muntaha al-Iradat", 3/553 ).

They also said: it is valid to hand over a slave, a mount, a waterskin, a pot, a plow, a water wheel (noraj) or a sickle, and the like, to one who will work with it for a portion of its hire; and to hand a garment to one who sews it, or yarn to one who weaves it, for a portion of its profit. Ibn Qudama (may Allah have mercy on him) said: if one hands his garment to a tailor to cut it into shirts for sale, taking half their profit as the right of his work, it is valid, explicitly stated in the narration of Harb. If one hands yarn to a man who weaves it into a garment for a third or a quarter of its price, it is valid, explicitly stated; but Malik, Abu Hanifa and ash-Shafi'i did not permit any of that, the compensation being an unknown and the work unknown; we have given the reason for its validity. If known dirhams are added to it, it is not valid, explicitly stated; its permissibility is also transmitted, but the sound view is the first. Abu Bakr said: this is an old view, and nothing else is related, so upon it the reliance rests. Al-Athram said: I heard Abu 'Abdillah (Ahmad ibn Hanbal) say: "There is no harm in a garment handed over for a third or a quarter."

He was asked about the man who gives the garment for a third plus a dirham or two, and said: "I dislike it, for this is something not known; the third alone, with nothing added to it, we hold valid, on the hadith of Jabir that the Prophet (peace and blessings of Allah be upon him) gave Khaybar on the basis of half." It was said to Abu 'Abdillah: what if the weaver will not accept unless a dirham is added to the third? He said: "Let him be given a third and two tenths of a third and half a tenth, and the like of that." Al-Athram transmitted from Ibn Sirin, an-Nakha'i, az-Zuhri, Ayyub and Ya'la ibn Hakim that they permitted it. Ibn al-Mundhir said: al-Hasan disliked all of this. Abu Thawr and the proponents of personal reasoning said: all of this is defective; Ibn al-Mundhir and Ibn 'Aqil chose its validity. They said: if a net is handed to the fisherman to catch fish with it, between them in halves, all the catch belongs to the fisherman, and the net's owner receives the hire of its like; and by analogy with what is transmitted from Ahmad, the partnership is valid and whatever Allah grants is between them as they stipulated; for it is a substance grown by working it, so handing it over for a portion of its growth is valid, like land ( "al-Mughni", 5/7-8 ).

Harvesting a crop, milking a cow, collecting a debt and the like are valid for a known indivisible share, as are building a house, a mill, carving a door or grinding wheat; for these are substances grown by working upon them, so the contract over a portion of their growth is valid, like the tree in musaqat. Their performance in the form of mudaraba over commodities is not valid, for it occurs only through trade and disposition over the ownership of wealth, and this is otherwise. It is not contradicted by the hadith of ad-Daraqutni that the Prophet (peace and blessings of Allah be upon him) forbade the stud fee of the stallion ('asb al-fahl) and the qafiz (measure) of the miller: the latter was carried on a qafiz of ground flour, so he does not know the remainder after it, the benefit being unknown; whereas the amount here is a known indivisible share, unlike when a qafiz is fixed for him, for he does not know what remains after the qafiz, so the benefit is unknown.

If a dirham or more is added to the indivisible share, it is not valid on the explicit text; but sale and the like are valid: hiring out a thing, or going on expedition with a mount for a portion of its profit, that is, of the thing, or for a portion of its share, that is, of the mount; it is explicitly stated for the one who gave his horse for half of the spoils. Unlike: "Sell my slave or hire him out, the price or the wage being between us": that is not valid, the price or wage belonging to its owner, and the other receiving a like-wage.

It is valid to hand over a mount or bees, and the like such as a slave or a slave girl, to one who will attend to them for a known period, such as a year, for a portion of them, such as a quarter or a fifth; the growth belongs to the mount or bees and their like as joint property between the deliverer and the recipient according to their respective ownership, for it is their growth. Al-Bukhari said in his "Sahih", and Ma'mar said: "There is no harm in cattle being placed on a third or a quarter until a named term."

It is not permitted to hand over a mount or bees, and their like, to one who will attend to them for a period, even a known one, for a portion of their growth, such as milk, offspring, wool or honey, like musk and zabad (civet), since their growth comes without work; the worker receives a like-wage, for he worked for an unnamed compensation. It is also transmitted from him that it is valid, a view adopted by the shaykh Taqi ad-Din.

Ibn Qudama (may Allah have mercy on him) said: if he says to him: "Act by your judgment", does he have the farming? It is conceivable that he does not own that, for it is not understood from the absolute terms of the mudaraba. It is related from Ahmad (may Allah have mercy on him) concerning one who handed a thousand to a man, saying: "Trade with it as you wish", and he sowed and profited in it: the mudaraba is permitted and the profit is between them. The judge said: the apparent import of this is that "trade as you wish" entered into it, for farming is among the modes by which growth is sought; on this basis, if all the wealth perishes, no guarantee binds him ( "al-Mughni", 5/26 ).

Conditions of Work: Absolute and Restricted Mudaraba

Work in the mudaraba is subject to conditions: some are required for validity, the mudaraba being void if these conditions, or some of them, are missing; others void the mudaraba by their very presence. Some of these conditions are agreed upon, others disputed.

The mudarib's dispositions. Some are permitted to him without explicit text, others only with text; the ruling varies according to whether the mudaraba is absolute or restricted, and from one school to another.

The absolute mudaraba: the capital owner hands wealth to the mudarib without any restriction, without fixing for him the work, the place of trading, the time, the nature of the work, or the people to deal with, saying only: "Take this wealth in mudaraba, the profit between us in halves, in thirds, or the like". This type is permitted by the agreement of the schools ( "al-Iqna' fi Masa'il al-Ijma'", 3/1677, no. 3284 ), the schools differing only on what the mudarib may do, as will come.

The restricted mudaraba: the capital owner fixes one of these elements, appointing for him the work or the place where he will trade, the purchase of a specific good, or trading only with a specific person, or only at a specific time ( "Bada'i' as-Sana'i'", 6/87 ).

The scholars differed on the validity of such conditions in the restricted mudaraba, after agreeing that the qirad free of conditions is permitted ( "al-Iqna' fi Masa'il al-Ijma'", 3/1677, no. 3282 ). The Hanafis and Hanbalis permit these conditions in general, with details transmitted from them that will come; the Malikis and Shafi'is forbid them, the mudaraba being void thereby, with details that will come.

Hanafi view. The restricted mudaraba has the ruling of the absolute mudaraba, differing from it only by the measure of the restriction. The principle: a beneficial condition stands, for the origin in conditions is to consider them as far as possible; a beneficial restriction is thus considered, in keeping with the Prophet's hadith (peace and blessings of Allah be upon him):

Muslims are bound by their conditions.Reported by Abu Dawud

The mudaraba is restricted by what is mentioned and remains absolute as to what lies beyond it, like a general statement from which part is singled out while it remains general for the rest. A non-beneficial condition does not stand: it is abolished and joins nonexistence, what has no benefit being abolished and classed with nothing.

If a man hands wealth to another in mudaraba on condition of working in Kufa, the latter may not work elsewhere: the phrase "on condition that" is the language of conditions, and it is a beneficial condition, for markets differ by dearth and cheapness, and travel carries risk. The reality of the authorization is that it was nonexistence, arising only through the contract; it remains, as to what lies beyond what the contract addressed, upon its original nonexistence.

He therefore may not hand the merchandise to someone who will take it out of Kufa; if he takes it out, and buys and sells, he guarantees: it is a disposal not on the authorized footing, so he contravenes and guarantees, as if he had bought for himself, the profit being illicit to him with Muhammad and Abu Hanifa, licit with Abu Yusuf. If he buys nothing with it but returns it to Kufa, he is released from guarantee and the wealth reverts to a mudaraba in its state: he has returned to compliance before the contravention was established, like the depositary who contravenes then returns to compliance. If he does not return it and the wealth perishes before any disposal, there is no guarantee upon him, for the contravention was not established absent disposal.

If he buys with part of it and returns part: what he bought is his, and what he returned reverts to the mudaraba, the contravention having been established as to the bought portion and having lapsed as to the returned portion. If the capital is handed over on condition of working in Kufa's market, and he works in Kufa outside its market, that is permitted on the mudaraba, by istihsan; analogy requires that it not be permitted, for working in a specific place was stipulated as it would be in a specific land. The istihsan lies in that the restriction to Kufa's market is non-beneficial: one land is like one tract, so the condition is abolished.

If the owner says: "Work in Kufa's market, or do not work except in Kufa's market", and he works outside Kufa's market, he guarantees: the phrase "do not work except in Kufa's market" is an interdiction (hijr) after which disposal is not permitted; whereas in the first formulation it is not an interdiction but a condition of working in the market, a non-beneficial condition that was therefore abolished.

If the owner says: "Take this wealth, you shall work with it in Kufa", he may not work elsewhere: "in" (fi) is an adverbial word, so Kufa has been set as the locus of the authorized disposal; were disposal elsewhere permitted, Kufa would not be the locus of his disposal. Likewise with "so work with it in Kufa", the fa (so) being among the particles of conditioning, tying what precedes it to what follows; and with "the disposal in Kufa", the ba (in) being a particle of adhesion, requiring the quality to adhere to the thing described, which forbids disposal elsewhere.

If the owner says: "Take this wealth in mudaraba and work with it in Kufa", he may work in Kufa and wherever he sees fit: "take this wealth in mudaraba" is an authorization of disposal absolutely, and "work with it in Kufa" an authorization of work in Kufa, so he may work in any place he wishes, like the one who says: "Free one of my slaves", then says: "free my slave Salim", and he may free whichever slave he wishes without the agency being restricted to freeing a healthy slave; so it is here, the mudaraba being an agency of buying and selling.

If the owner says: "Take this wealth in mudaraba for half on condition that you buy food with it", or says: "so buy food with it", or says: "you shall buy food with it", or says: "take this wealth in mudaraba for half in food", all of that is the same, and he may buy nothing but food, by consensus, for what we mentioned: "on condition that" is for conditions, the stipulated condition in speech being given effect; the fa ties what precedes it to what follows; "you shall buy food with it" explicates the authorized disposal; and "in food", "in" being an adverbial word, takes the meaning of a condition when it governs what cannot serve as an adverb. All of that entails restriction to the stated condition, which is a beneficial condition: some kinds of trade are closer to the aim than others, and people differ in this, a man being guided to some trade and not another. Food means wheat and its flour by their usage, not everything eaten, some kinds being excluded from others, and it varies with the custom of lands; in their usage the word food applies only to wheat and its flour. Likewise if another kind is mentioned, such as "buy flour, bread, wheat or the like with it", he may work with nothing outside that kind, without disagreement; but he may buy that kind in the town (misr) or elsewhere, lend for use in it, and do in it all that the mudarib does in the absolute mudaraba, for the absolute word, when restricted to some things, remains absolute as to what lies beyond them.

Ibn Sama'a transmitted from Muhammad, concerning a man who handed wealth to another in mudaraba and said to him: "If you buy wheat with it, half the profit is yours and half mine; if you buy flour, a third is yours and two thirds mine", that this is permitted, and he may buy whichever he wishes according to the rates the capital owner named for him; for he gave him the choice between two different kinds of work, as a tailor may be given the choice between Roman and Persian sewing.

If wealth is handed to him on condition that, if he works in the town, a third of the profit is his, and that, if he travels, half is his, that is permitted, the profit being between them as they stipulated: if he works in the town, the third is his; if he travels, the half. If he buys in the town and sells on the journey, or buys on the journey and sells in the town, it is transmitted from Muhammad that he said: the mudaraba in this rests on the purchase; if he buys in the town, whatever he profits on that merchandise follows what was stipulated for the town, whether he sells it there or elsewhere; for the mudarib earns the profit only by work, and work is realized by purchase. If he works with part of the wealth on the journey and part at home, each of the two portions carries profit as stipulated.

If the owner says: "on condition that you buy from so-and-so and sell from him", that is permitted, and it is restricted to so-and-so specifically: he may not buy and sell of anyone else; for this is a beneficial condition, people differing in trust and reliability, buying from some being more profitable for ease of selling, or safer for the wealth, so the restriction is beneficial, like restriction to one kind rather than another. If it is said: "on condition that you buy from the people of Kufa and sell", and he buys and sells from men present in Kufa who are not of its people, that is permitted: this condition signifies nothing but forgoing travel, as if he had said: "on condition that you buy from whoever is in Kufa".

Likewise, if wealth is handed over in mudaraba in money changing, on condition of buying from the money changers and selling, he may buy from other than the money changers whatever he sees fit in exchange; for the restriction to the money changers signifies only specifying a land or a kind; once that is obtained from a money changer or another, it is all the same. If wealth is handed over in mudaraba and the owner then says: "Buy cloth with it and sell", he may buy cloth and other things: having authorized buying absolutely, then ordered the buying of cloth, he may buy what he wishes, like his saying: "take this wealth in mudaraba and work with it in Kufa", except that there the restriction was simultaneous and here deferred.

Al-Quduri (may Allah have mercy on him) reported that this is read as though he forbade it after the purchase: the ruling on a restriction arising upon an absolute contract is that it applies if it comes before the purchase, but not if he has already bought with it, until he sells it for ready money, at which point the restriction applies and he may buy only what was said. If wealth is handed over in mudaraba on condition of selling and buying for cash, he may not buy and sell except for cash: this restriction is beneficial, so he is bound by it. If the owner says: "Sell on credit (nasi'a), do not sell for cash", and he sells for cash, that is permitted: cash being more beneficial than credit, the restriction to credit was non-beneficial and does not stand, like saying to an agent: "Sell for ten" and he sells for more, without harm ( "Bada'i' as-Sana'i'", 6/99-100 ; "al-Hidaya, sharh al-Bidaya", 3/204 ; "al-Ikhtiyar", 3/24-25 ; "al-Jawhara an-Nayyira", 3/448-449 ; "Mukhtasar al-Waqaya", 2/190 ; "al-Lubab", 1/542 ; "Tabyin al-Haqa'iq", 5/59 ; "Majma' ad-Damanat", 2/652 ; Ibn Abidin, 4/321 ).

Hanbali view. If the capital owner stipulates upon the worker that he not travel with the wealth, or that he travel with it, or that he trade only in a specific land or a specific kind, or that he buy only from a specific man, all of that is valid, whether the kind is commonly found or not, and whether the man is one whose merchandise is abundant or scarce: it is a contract that may validly be restricted by a kind, hence by a specific man and a specific merchandise, like agency.

But if it is stipulated that he sell only at the price of the capital or less, or he says: "Sell only to so-and-so, buy only from so-and-so, and sell only to the one you bought from", that is not valid: these are corrupt conditions, missing the purpose of the mudaraba, which is profit, or preventing the permitted rescission that the principle allows ( "al-Mughni", 5/40-41 ; "al-Ifsah", 1/449 ).

Maliki view. The capital owner may not stipulate upon the worker that he trade only in goods whose existence is rare, saying: "Trade only in such a thing", its existence being scarce in the land of the qirad: if he does so and works, the qirad is defective and becomes a like-qirad in profit on the well-known view, whether he contravened by buying something else or bought it; it has been said: he is owed a like-wage.

Likewise not permitted: stipulating the capital owner's hand alongside the worker in selling, buying, taking and giving in what pertains to the qirad; stipulating that he consult him in selling and buying, the qirad being voided by the restraint and narrowing contrary to the sunna of the qirad, with a like-wage for him; stipulating a supervisor over the worker; fixing a trading place not to be exceeded, a market or a shop; fixing a time, "buy or sell only in winter", "buy in summer and sell in winter", even with several times; stipulating that he buy nothing until reaching a certain land, disposal in any place being his thereafter; or fixing a person to buy from, nothing being bought of anyone else, or to sell to, no merchandise being sold to anyone else. The qirad is void in all of this through the restraint contrary to the sunna of the qirad; he is owed a like-wage, the profit belongs to the capital owner, and the loss is upon him in all cases.

Any condition in a contract that leads to losing the purpose of the contract or rendering it impossible voids it: selling goods on condition of not disposing of them or not selling them; marrying a woman on condition of not consummating the marriage. As for their reason for returning the worker in a defective qirad entirely to the hire of a like, without distinction: the qirad is a hire with gharar, the worker working on the wealth for a portion of whatever profit there may be; it was excepted from the principles out of necessity, being valid only upon its own manner and sunna. If it occurs otherwise, it is not a qirad even if they call it one: it is a defective hire, returned to the hire of a like; it is a qirad only when they work upon its sunna. The qirad is a sound contract producing a named compensation for the worker's work; if it is defective, a like-wage is owed him for his lost work.

The Malikis did, however, permit the capital owner to stipulate upon the worker not to descend into a valley, or not to travel by night with the wealth, because of the risk; or not to land the wealth on the sea, salt or sweet, because of the risk; or to buy a specific merchandise for him, for a sound purpose such as scant profit in it or loss occurring in it: he works by his condition, for it is a permitted condition; and the worker guarantees the wealth if he contravenes one of the mentioned clauses and loss results from the contravention; if he took the risk, delivered it, and the wealth then perishes, no guarantee is upon him ( "al-Muqaddimat al-Mumahhadat", 3/13 ; "al-Ishraf", 3/169 ; "ash-Sharh al-Kabir with Hashiyat ad-Dasuqi", 5/284, 288 ; "adh-Dhakhira", 6/36 ; "at-Taj wal-Iklil", 4/413, 417 ; "Tahbir al-Mukhtasar", 4/508, 511, 518 ; "Sharh Mukhtasar Khalil", 6/206, 208, 213 ; "ash-Sharh as-Saghir", 8/398-399 ; "al-Bahja fi Sharh at-Tuhfa", 2/358 ).

Shafi'i view. It is required that the owner not restrict the worker in disposition: he may not stipulate the purchase of a specific good, of a kind whose existence is rare, or dealings with a specific person, for the reasons given earlier; a kind not rare is valid, even if perishable, and forbidding these things is valid ( "Mughni al-Muhtaj", 3/343-344 ; "Nihayat al-Muhtaj", 5/254-255 ; "an-Najm al-Wahhaj", 5/262-263 ; "ad-Dibaj", 2/428-429 ; "Kifayat al-Akhyar", 341 ; "Hashiyat al-Bajuri", 2/44 ).

Ibn Rushd (may Allah have mercy on him) said: they differed over the qirad in which the capital owner stipulates upon the mudarib a specialization of disposal, such as stipulating the fixing of a certain kind of goods, a certain kind of sale, a certain place of trading, or a certain class of people to trade with. Malik and ash-Shafi'i, on stipulating a kind of goods, held that this is not permitted, unless that kind of goods is available at all times of the year. Abu Hanifa said: he is bound by what was stipulated upon him, and if he disposes outside what was stipulated, he guarantees. Malik and ash-Shafi'i held this stipulation to be a restriction magnifying the gharar; Abu Hanifa belittled the gharar present, as if one stipulated not to buy a certain kind of goods, in which he would be bound by his condition by consensus ( "Bidayat al-Mujtahid", 2/180 ).

The Duration of the Mudaraba

The jurists differed over the mudaraba: may it validly be limited by a period, after their agreement that it is permitted without a term?

The Hanafis and Hanbalis, within the madhhab, held that a mudaraba limited by a time is permitted: if the owner says: "Take this wealth in mudaraba for a month or a year", the mudaraba is valid. The mudaraba is an agency, and agency tolerates being specified by one time rather than another; the contract lapses with the passing of the fixed time, a temporary ruling ending with the passing of time; and time-setting is beneficial, a restriction by time, like restriction by kind and place. Moreover, the capital owner could forbid him selling and buying at any time if he consented to take back his wealth as goods: stipulating that is stipulating what the contract entails, so it is valid, as if he said: "When the year ends, buy nothing more" ( "Bada'i' as-Sana'i'", 6/99 ; "al-Hidaya, sharh al-Bidaya", 3/205 ; "al-Ikhtiyar", 3/25 ; "al-Jawhara an-Nayyira", 3/449 ; "al-Lubab", 1/543 ; "Tabyin al-Haqa'iq", 5/90 ; "Majma' ad-Damanat", 2/653 ; Ibn Abidin, 8/293 ; "al-Fatawa al-Hindiyya", 4/298 ; "al-Iqna' fi Masa'il al-Ijma'", 3/1676, no. 3281 ).

One of them reported: I asked Ahmad about a man who gave another a thousand in mudaraba for a month; when the month passes, does it become a loan? He said: there is no harm in it; and if the month arrives while it is merchandise: when he sells the merchandise, it becomes a loan ( "al-Mughni", 5/40-41 ; "al-Mubda'", 5/21 ; "al-Insaf", 5/430 ; "Sharh Muntaha al-Iradat", 3/569 ).

The Malikis, the Shafi'is and the Hanbalis on one view, which at-Tahawi transmitted from the Hanafis, al-Kasani objecting to it, held that limiting the mudaraba by a time is not permitted, whether by proposing the qirad for a known duration not rescindable before it, or on condition that the contract dissolve by itself at the end of the term. It is thus not permitted to sell what he bought of merchandise, nor to resume buying other things, and whenever the contract falls upon that it is defective: it contains a restraint departing from the sunna of the qirad. The qirad is among the permitted contracts, each of the two parties being able to abandon it if he wishes; stipulating the term is as if he forbade himself abandoning it, which is not permitted, for it is like agency whose meaning it contains: the wealth belongs to the owner, and the worker disposes of it only to seek its surplus and growth as the owner's deputy. The difference between the two: agency does not contain the agent's partnership with the principal in the profit, while the qirad contains it. The qirad being a permitted contract, it must remain rescindable; its time-setting requires bindingness, so its corruption follows. If it occurs, it is returned to a like-qirad with the Malikis ( "al-Ishraf", 3/178, no. 1026 ; "ash-Sharh al-Kabir with Hashiyat ad-Dasuqi", 5/284 ; "at-Taj wal-Iklil", 4/412 ; "Tahbir al-Mukhtasar", 4/508 ; "Sharh Mukhtasar Khalil", 6/206 ; "ash-Sharh as-Saghir", 8/395 ).

Abu Hafs al-'Ukbari gave three reasons for the prohibition. The first: it is a contract concluded absolutely; stipulating its cutting invalidates it, like marriage. The second: this is not among the contract's requirements, and the owner has no interest in it, like stipulating that he not sell; the proof that it is not among the contract's requirements is that it requires the capital to ripen, and forbidding him to sell prevents its ripening. The third: this causes harm to the worker, for the profit and the chance may lie in the remaining merchandise, sold after the year, which the passing of the term prevents ( "al-Mughni", 5/41 ).

The Shafi'is say: the duration of the qirad is not stipulated, the two being able to rescind it whenever they wish. If a duration, such as a month, is mentioned, it is not valid: the time-setting falls short of the purpose of the qirad, for profit may not come within the fixed term; and forbidding him disposal or sale after it voids the contract, falling short of the contract's purpose: he may find no willing buyer within the term, so trade and profit are not realized. It also contradicts the contract's requirement: after rescission the capital is to be liquidated, and forbidding disposal after the term prevents that. If only his buying is forbidden, as if he said: "Buy no more after it, but selling is yours", the sale is not void on the sounder view, for profit through selling remains possible after the month; and since the owner can forbid him buying at any time, he may stipulate it in the contract, unlike forbidding him to sell ( "al-Mughni", 5/41 ).