Islamic Fiqh > Companies and leases > Mudaraba (capital-management partnership) > Mudaraba suspended on a condition and credit sale by the mudarib
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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.
Mudaraba is the contract by which the owner of a capital entrusts it to a working partner who makes it grow in exchange for an agreed share of the profit. This second half of the chapter sets out what the working partner may or may not do with the funds: selling or buying on credit, transferring the debt, buying beyond the capital, traveling, incurring expenses, selling at a grave price gap, bartering, returning goods for defects, pledging, giving and lending, depositing, hiring services, mixing the capital, sub-letting it as a new mudaraba, or devoting it to farming and irrigation. The positions of the four schools are set out with their evidences and classical references.
The Hanbalis hold that a mudaraba is valid although suspended on a condition, because it is an authorization to dispose; the authorization may therefore be made conditional on a future condition, as with agency (wakala). The capital owner may say to the worker: "when Zayd comes, trade with this money, or collect my debt from so-and-so then trade with it", for he is his agent in collecting the debt and has been permitted to dispose; it is therefore valid to make the mudaraba effective upon the collection, as in: "collect a thousand dirhams from my servant and then trade with them" (Sharh Muntaha al-Iradat 3/570; Matalib Uli an-Nuha 3/522).
The Malikis and the Shafi'is hold that suspending the qirad is invalid: "when the beginning of the month comes, I have entered qirad with you", by analogy with other contracts; likewise if he concludes the contract but suspends the disposition: "I enter qirad with you now, but do not dispose until after a month", or "when such a time comes, work with it". The Malikis declare this void; the Shafi'is, against their sounder view, hold it valid like agency (al-Ishraf ala Nukat Masa'il al-Khilaf 3/178, no 1026; ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi 5/284; at-Taj wa-l-Iklil 4/412; Tahrir al-Mukhtasar 4/508; Sharh Mukhtasar Khalil 6/206; ash-Sharh as-Saghir 8/395; an-Najm al-Wahhaj 5/265).
Then come the acts the mudarib may perform or not. First case: selling on credit (nasi'a). If the mudarib sells on credit, three situations are possible: the capital owner forbade him to sell on credit, or permitted him, or neither ordered nor forbade him. If he forbade him and he nevertheless sells on credit, he is liable by the consensus of the scholars. Ibn al-Mundhir, may Allah have mercy on him, reports that they all agreed that if the capital owner forbade the worker to sell on credit and he sells on credit, he is liable (al-Ijma' 532; Ibn al-Qattan al-Fasi cites the same consensus in al-Iqna' 3303; al-Mughni 5/23): one may not oppose the capital owner, for he disposes only by permission and may therefore not dispose beyond what was permitted, like the agent; and because this does not defeat the purpose of the mudaraba, which is generally the pursuit of profit.
If he was permitted and sells on credit, no liability falls on him by consensus. There remains the case where the capital owner neither ordered nor forbade: here the scholars differ on the ruling. Abu Hanifa and the Hanbalis in the school permit selling on credit: the authorization to trade and to conduct the mudaraba extends to customary trade, which is the merchants' habit; everything that is trade, or without which trade cannot be done, falls under the authorization; profit is sought therein, and profit is greater in credit sales, closer to the owner's aim; the owner does not intend to leave the worker idle, but to obtain profit through trade, which is achieved. The proof that credit sale is unrestricted trade is the word of Allah, exalted be He:
« unless it be a present trade which you carry on between yourselves »
Surah al-Baqarah, 282
The verse shows that trade may be deferred, and that only happens through credit sale. This is when the mudarib sells for a customary term; if he sells for a term for which merchants do not sell, which is not customary, it is not permitted, for they are the reference in this chapter, and the general command extends to what is customary among people. This is why the mudarib may charter a ship for traveling but may not buy it for traveling, in consideration of the merchants' custom.
The Malikis, the Shafi'is, Abu Yusuf, Muhammad, and Ahmad in the other narration, hold that selling on credit is not permitted to him without the capital owner's authorization: he is a deputy in selling, so he may not sell on credit without express permission, like the agent; the deputy disposes only on the path of right and caution, and credit sale involves deception over the money; the very situation acts as a restriction of the general statement, as if he had said: "sell it for cash"; and the capital may be lost, so that liability remains with the owner.
The Shafi'is add: if he sells with the owner's permission, the sale is valid; it must be concluded with a trustworthy, solvent man, and witnessing is obligatory on him; if he omits it and does not call a witness, he is liable; one witness or a mastur (a man whose reliability is known by reputation) suffices; witnessing is not obligatory in a cash sale, for it would hold back the sold good until the price is received: if he delivers the good before receiving the price, he is liable, unless the owner permits him to deliver before receiving the price; he then delivers, without obligation of witnessing or liability, because of the permission, since custom omits witnessing in cash sales.
If a fixed term is set for the mudarib, he may neither increase nor decrease it; if the term is left general, one refers to custom. Al-Mawardi, may Allah have mercy on him, adds: with permission for credit sale, he may not buy or sell by salam, for the salam contract carries greater gharar; if he is expressly permitted to buy by salam it is valid, but selling by salam is not permitted to him, the distinction being that the advantage usually lies in buying rather than selling. Al-Khatib al-Shirbini holds the sounder view, as stated by his master: its validity in the form of sale as well, since consent exists on both sides. He may likewise not buy something for an equivalent price without hoping for any profit, for the permission does not require it, as al-Mawardi said; nor buy outside the genus of the capital.
Al-Mawardi: if it is stipulated on the worker that he sell only on credit, not for cash, the contract is void (Mughni al-Muhtaj 3/350 and 351; an-Najm al-Wahhaj 5/274; Asna al-Matalib 2/385; I'anat at-Talibin 3/194; Hashiyat Qalyubi wa-Umayra ala Kanz ar-Raghibin 3/134 and 135). Al-Mudawwana al-Kubra cites Malik concerning the muqarid who sells on credit: "Malik said: the muqarid may not sell on credit except with the permission of the capital owner, and he is liable if he sells on credit without his order" (al-Mudawwana al-Kubra 12/166).
The shaykh Muhammad Alish, may Allah have mercy on him, explains it: if the worker sells goods of the qirad on credit without the capital owner's permission, he is liable according to Imam Malik; the worker may sell on credit only with permission, and if he does so without it he is liable; and this as long as nothing was stipulated in the original contract, for the sales of Muslims are mostly cash, so that the ambiguous contract, once concluded, refers to custom. From this one takes that if custom is credit sale, the ambiguous refers to it, which is apparent (Manh al-Jalil 7/348). If he sells on credit, the profit is shared between the two and the loss is on him according to the most widespread view (ash-Sharh al-Kabir 5/295; Sharh Mukhtasar Khalil 6/214; Tahrir al-Mukhtasar 4/519; at-Taj wa-l-Iklil 4/424; Manh al-Jalil 7/350).
Ibn Qudama, may Allah have mercy on him, summarizes: if we hold that he may sell on credit, the sale is valid, and the mudarib need not guarantee the lost price, unless he is negligent in selling to someone unworthy of trust or unknown; he then guarantees the price lost by the buyer. If we hold the opposite, the sale is void, for he did what he was not permitted, like the sale of a third party; except according to the narration that the third party's sale stands pending ratification, and here it is the same; al-Khirqi's wording may bear the validity of the sale, for he only mentioned liability, not invalidity; in any case the worker owes the liability, the loss of the price resulting from his negligence. If the sale is void, he guarantees the sold good at its value when he cannot recover it, either because it perished or because the buyer refuses to return it; if the sale is valid, he may also guarantee its value, or the price, for it became due through the sale and was lost through the seller's negligence; if it fell below the value, the obligation transferred to him, the proof being that had the price been received he would guarantee nothing (al-Mughni 5/23 and 24).
The previous disagreement between Abu Hanifa and his two companions concerns credit sale; if he sells for cash then defers the price, it is valid by consensus. According to Abu Hanifa and Muhammad, the agent owns deferring the price, so the mudarib all the more, his disposition being stronger; but the mudarib does not guarantee, for he may rescind the sale and then sell on credit, unlike the agent who does not own that. According to Abu Yusuf, he may rescind and then sell on credit, unlike the agent who does not own rescission. In other words: according to the two, the agent owns rescission and deferral of the price, but if he defers he guarantees, while the mudarib does not guarantee, since he may rescind and then sell on credit, thus likewise defer from the outset without liability; according to Abu Yusuf, deferral is not permitted to the agent but permitted to the mudarib, for what has been mentioned.
The Hanafis add: if the capital owner says "sell only for cash", the mudarib may sell only for cash, for the mudaraba admits specification, and the owner has a benefit in it, the advancement of the money; if he orders him to sell on credit, he may sell for cash as well as on credit, cash being better for him; just as if a man is appointed to sell a slave for a thousand dirhams and not beyond that price, he may sell him for a thousand, or less.
If the mudarib claims that the capital owner permitted him to buy and sell for cash and on credit, and the owner states that he permitted only cash, Abu Hanifa, Malik and Ahmad uphold the mudarib's statement with his oath: he claims what the absolute contract entails, and the burden of proving the specification lies on the owner. Al-Shafi'i, may Allah have mercy on him, upholds the owner's statement with his oath (al-Mabsut 22/38; Bada'i' as-Sana'i' 6/87; al-'Inaya Sharh al-Hidaya 12/178 and 180; al-Jawhara an-Nayyira 3/464 and 465; al-Ikhtiyar 3/24; Mukhtasar al-Wiqaya 2/189; al-Lubab 1/548; Majma' ad-Damanat 653; al-Fatawa al-Hindiyya 4/292; al-Mudawwana al-Kubra 12/166; Hashiyat as-Sawi 8/407; Manh al-Jalil 7/348; Rawdat at-Talibin 3/749; Mughni al-Muhtaj 3/350 and 351; an-Najm al-Wahhaj 5/274; Asna al-Matalib 2/385; ad-Dibaj 2/434; al-Mughni 5/23 and 24; al-Kafi 2/260; al-Muharrar 1/351; al-Mubdi' 5/10; al-Furu' 4/290; al-Insaf 5/415 and 416; Kashshaf al-Qina' 3/586; Sharh Muntaha al-Iradat 3/553; Matalib Uli an-Nuha 2/503; al-Ifsah 1/450).
Second case: buying on credit by the mudarib. The jurists differ: may the mudarib buy on credit when the capital owner neither permitted nor forbade him? The Hanafis permit buying on credit just as selling on credit, for all of this belongs to the merchants' practice and falls within the absolute contract; the worker is charged with trading, and everything that is trade, or without which trade cannot be done, falls within the authorization (al-Hidaya 3/210; al-Ikhtiyar 3/24; Mukhtasar al-Wiqaya 2/189).
The Malikis hold that the worker may not buy goods for the qirad on credit, even if his owner permits it; buying for himself, however, is permitted if it does not distract him from the qirad. The difference is that selling on credit is permitted to him with the capital owner's permission, as seen, but buying on credit is not permitted even with permission: selling on credit risks destroying the property, which is a right of the owner, and the permission makes it lawful; buying on credit, however, makes him a guarantor: the profit would be entirely his and the owner would have nothing of it, for the Prophet, peace and blessings of Allah be upon him, said:
He prohibited taking profit on what one does not guarantee.hadith reported from the Prophet
How then could the capital owner take the profit of what the worker guarantees on his own liability? This is when the owner has a share of the profit; if the profit were entirely the worker's, it would be permitted, for he would then escape the Prophet's prohibition of profiting from what one does not guarantee. So if he buys a good on credit for the qirad, the profit of that good belongs to the worker and the owner has nothing of it; likewise the loss falls on him, as if he had bought on credit for himself; if he buys that good for himself or for the qirad with a debt on his liability separate from the goods of the qirad, and sells it likewise, all its profit is his and its loss on him, its value not being considered (ash-Sharh al-Kabir 5/298; Sharh Mukhtasar Khalil 6/216; Tahrir al-Mukhtasar 4/522; at-Taj wa-l-Iklil 4/427; Manh al-Jalil 7/350; Hashiyat as-Sawi 8/407; Manh al-Jalil 7/354).
Among the Shafi'is, the two shaykhs were not explicit, but Imam al-Mawardi and the later Shafi'is state its validity with permission; without permission it is not allowed. Al-Mawardi: with permission for deferred disposition he may not buy or sell by salam, for salam carries greater gharar; if permitted for buying, it is valid, selling by salam not being permitted, the advantage usually lying in buying alone, as az-Zarkashi writes in al-'Ubab (788). Al-Khatib al-Shirbini, may Allah have mercy on him, holds the sounder view: its validity in the form of sale as well, since consent exists on both sides. He may likewise not buy something for an equivalent price without hoping for any profit, for the permission does not require it, as al-Mawardi said, nor buy outside the genus of the capital (Mughni al-Muhtaj 3/350 and 351; an-Najm al-Wahhaj 5/274; Asna al-Matalib 2/385; Hashiyat I'anat at-Talibin 3/194; al-'Ubab 788).
Ibn Shatta ad-Dimyati, may Allah have mercy on him, explains it in his commentary on Fath al-Mu'in: "and not on credit" means he does not dispose on credit, that is with a term, in selling or in buying, because of the gharar, and because the capital may be lost, leaving liability attached to the owner. "And without permission in both cases" refers to the ghabn and the credit sale; with permission it is lawful, for the prohibition protected his right and that right has vanished through his consent (I'anat at-Talibin 3/194; Hashiyat Qalyubi wa-Umayra ala Kanz ar-Raghibin 3/134 and 135).
The Hanbalis: Ibn Qudama writes in al-Mughni that if he buys on liability, the obligation binds the worker, not the capital owner, unless the latter ratifies it, in which case it is his; such is the apparent meaning of al-Khirqi's words. Al-Qadi adds: if he concludes the purchase in general terms without mentioning the owner, the same applies; and if he declares to the seller: "I bought it for so-and-so", the sale is likewise void (al-Mughni 5/25).
Third case: transferring the debt with the price. The Hanafis and the Hanbalis explicitly state that the mudarib may transfer the debt and assign with the price. The Hanafis explain: the mudarib may transfer and assign with the price; if he assigns the price to a solvent or an insolvent man, it is permitted, for transfer belongs to the merchants' custom: they often manage to collect from the assignee more than from the assignor. This is not like the testamentary executor who assigns with the orphan's property, where the sounder option is considered, his disposition being bound by the duty of care: what is sounder is permitted, otherwise not, for the executor disposes for the orphan on the path of caution, and what carries none of it is not permitted; the mudarib, however, disposes according to the merchants' custom, and what they are accustomed to do is permitted (al-'Inaya Sharh al-Hidaya 12/178 and 180; al-Jawhara an-Nayyira 3/464 and 465; al-Lubab 1/542; Majma' ad-Damanat 654).
The Hanbalis say that the ruling of mudaraba is that of partnership as regards what the worker may do or refrain from doing, what is obligatory on him, and the conditions: what is permitted in one is permitted in the other, the two sharing disposition by authorization, and likewise prohibition. They said: the partner may transfer the debt and assign, for hawala is a contract of exchange which he owns; likewise in the mudaraba (Kashshaf al-Qina' 3/585 and 599; Sharh Muntaha al-Iradat 3/553 and 568; Matalib Uli an-Nuha 3/503).
The Malikis: al-Mudawwana reports: "I said: consider the case of a man who takes property in qirad, buys and sells; having sold part of the merchandise, he assigns the price to a solvent or insolvent man for a term: do you consider him liable? He said: Malik said: if the worker sells on credit without the capital owner ordering him to do so, he is liable; so I consider him liable if he assigns thus for a term, like the one who sold on credit" (al-Mudawwana al-Kubra 12/122).
Fourth case: buying beyond the capital. The jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis, hold that the mudarib may not buy goods for the qirad with more than the qirad property; if he does so, he is liable. The Hanafis explain: once the mudarib has received the mudaraba property, he may not buy with more than the capital in his hand, for the excess would be a debt, and he holds no mudaraba property to discharge it. If he buys a good for two thousand dirhams while the mudaraba property is a thousand, the thousand's share in the purchased good belongs to the mudaraba and the share of the excess belongs to the mudarib alone: its profit is his and its loss falls on him, the excess being a debt on his own property; he may buy with the thousand for the mudaraba, not with the excess, and he may buy for himself, so that it fell to him (Bada'i' as-Sana'i' 6/90 and 92; Mukhtasar al-Wiqaya 2/189).
They likewise say: the mudarib may not incur a debt on the mudaraba property except by express specification; if he borrows, it does not bind the owner, and it is a debt on the mudarib from his own property; for borrowing establishes an increase in the capital without the owner's consent, indeed an increased liability on him without his consent: in the mudaraba, the price of what is bought with the capital is guaranteed by the owner, the proof being that if the mudarib buys with the capital and the purchase perishes before delivery, the mudarib claims its like from the owner; allowing borrowing on the mudaraba would impose on the owner an increased liability to which he did not consent, and that is not permitted.
Borrowing means for the mudarib to buy something for a price-debt of which he holds nothing of its genus in hand; even if nothing of the capital remains in dirhams and dinars: if he bought a good with the capital and then buys something with the dirhams or dinars received, it does not bind the mudaraba, and the buyer is owed the price from his own property; for he bought with a price of which he holds nothing of its genus in hand, thus becoming a borrower on the mudaraba; it therefore does not bind the owner but binds him, the purchase having taken effect upon him, like the purchase-agent who contravenes, whether the price is immediate or deferred. If what is in the mudarib's hand, a slave or goods, equals or exceeds the capital, and he buys something for the mudaraba with dirhams and dinars intending to sell the goods and pay the price from them, it is not permitted, immediate or deferred: it is borrowing. If he sells the goods in his hand for dirhams and dinars and receives them before the term falls due, he gains nothing by it: having contravened at the purchase, the price binds him and the good becomes his, the contract having taken effect for him without being able thereafter to return to the mudaraba.
If he holds of the mudaraba measured or weighed goods and buys a garment or a slave with measured or weighed described goods on liability, the purchase is for the mudarib, for he holds of its genus in hand, so it is not a borrowing; if he holds dirhams and buys a good with deferred dirhams, it is likewise not a borrowing; if he holds dirhams and buys with dinars, or the reverse, the analogy is that it does not bind the owner, which is Zufar's view, while istihsan allows it. The analogy rests on the fact that dirhams and dinars are two genuinely distinct genera: he bought with that of which he holds no genus in hand, as if he had bought with goods. Istihsan rests on the fact that, for merchants, dirhams and dinars are as one genus, being the prices of things: expenses, blood-money installments and the value of destroyed goods are assessed by them, and either can be converted into the other without difficulty; the two are therefore like one thing, and he bought with a price of whose genus he holds something in hand.
If the capital is a thousand dirhams and he buys a good for a thousand, in dinars or in small coin worth a thousand, he may not thereafter buy, on the mudaraba's thousand, anything for another thousand or otherwise: the mudaraba property has become due by the first price, and buying thereafter would make him a borrower on the mudaraba property, which is not permitted. If he first bought a slave for five hundred, he may thereafter buy only up to five hundred, for the five hundred have left the mudaraba; likewise every debt attaching to the capital: the amount due leaves the mudaraba, and buying beyond the remainder makes him a borrower on the mudaraba property, which is not valid.
If he has sold, bought and disposed until he holds various kinds, measured, weighed and counted, with no dirhams, dinars or small coin in hand, he may not buy a good with a price of which he holds no equivalent in genus, description and quantity, for instance buying a slave against a described iraq of wheat; if he buys against an iraq of medium wheat holding the like in hand, or of good quality holding its like, it is permitted; if he holds better or worse, it does not belong to the mudaraba but to the mudarib: lacking the like of the price he becomes a borrower on the mudaraba, and that is not permitted.
In all this the mudarib may not borrow against the owner, whether the latter said "act by your judgment" or not; for those words are a delegation concerning what belongs to the mudaraba, and borrowing does not enter the mudaraba contract: the mudarib may do it only by the owner's express authorization. Just as he may not borrow on the mudaraba property, he may not borrow for its maintenance: if he bought with all the mudaraba property garments and then hires someone to carry them, have them sewn or transport them, he does all that voluntarily; for nothing of the capital remaining in his hand, hiring would make him a borrower on the mudaraba, which is not permitted: he would contract for himself, voluntarily, with another's property, like carrying another's goods or sewing garments for another without an order.
If the mudarib is permitted to borrow on the mudaraba property, borrowing is permitted to him; what he borrows then constitutes a partnership between the two, a partnership of standing (sharikat wujuh), and the purchase falls to them in halves: what is bought with a debt cannot be turned into a mudaraba, the latter occurring only with existing property, hence the partnership of standing; the purchase falls to them by halves because the absolute partnership entails equality, whether the mudaraba's profit was fixed by halves or by thirds, this partnership being independent and not built on the mudaraba's rule. It was shown, in the chapter on partnership, that unequal profit in the partnership of standing is valid only with a condition of unequal liability; if they stipulate unequal liability, the profit follows; if they leave it absolute, the purchase falls to them by halves without unequal profit. This being a partnership of standing, the price is a debt on both, outside the mudaraba: the mudarib may therefore not pledge the mudaraba property for it without the owner's authorization; if the latter permits him to pledge the whole price, the owner has lent him half the pledge so that he may pledge his debt, and if it perishes it is guaranteed on him (Bada'i' as-Sana'i' 6/90 and 92; Mukhtasar al-Wiqaya 2/189).
The Malikis hold that the worker may not buy for the qirad with more than the qirad property, even with cash of his own, because of the prohibition of profiting from what one does not guarantee: the worker guarantees the excess on his liability, which then enters the qirad, and he discharges it afterwards as stated. If he buys a good with more than his property, the profit of that good belongs to the worker, the owner having nothing of it; likewise the loss falls on him, as if he had bought on credit for himself; if he buys that good for himself or for the qirad with a debt on his liability separate from the goods of the qirad, and sells it likewise, all its profit is his and its loss on him, its value not being considered (ash-Sharh al-Kabir 5/298; Sharh Mukhtasar Khalil 6/216; Tahrir al-Mukhtasar 4/522; at-Taj wa-l-Iklil 4/427; Manh al-Jalil 7/350; Hashiyat as-Sawi 8/407; Manh al-Jalil 7/354).
Al-Mudawwana al-Kubra reports: "Imam Malik said: if the muqarid buys goods with the qirad property, adding of his own money beyond the owner's property, the owner has the option: if he wishes, he pays him the excess and the whole merchandise stands for the qirad; if he dislikes that, the worker becomes partner with the owner in what he added of his property" (al-Mudawwana al-Kubra 12/95).
The Shafi'is hold that he may not buy for the qirad beyond the capital and its profit, for the owner consented to the worker encumbering his liability only to that extent; if he does so, the excess does not belong to the qirad. If the capital, alone or with its profit, is a hundred, and he buys a slave for a hundred and then buys another with the same hundred, the second purchase is void, whether the first was concluded on the object itself or on liability: if he bought it on the object, it became the seller's property through the first contract; if he bought it on liability, it became due for exchange through the first contract; if the second purchase is concluded on liability, it falls to the worker, as it falls to the agent who contravenes (Rawdat at-Talibin 3/750; Mughni al-Muhtaj 3/352; Nihayat al-Muhtaj 5/266; an-Najm al-Wahhaj 5/275; Asna al-Matalib 2/385; Hashiyat I'anat at-Talibin 3/194; Hashiyat Qalyubi wa-Umayra 3/136 and 137; al-'Ubab 789).
The Hanbalis: the mudarib may not buy beyond the capital, for the authorization did not cover it. If the capital is a thousand and he buys a slave for a thousand, it belongs to the mudaraba, permitted; if he buys another, it does not enter the mudaraba, not permitted, and its ruling is that of buying for another without permission: its profit is the mudarib's if he profits, and its loss on him, unless the capital owner permits it. If the thousand perishes before payment in the first purchase, the price falls on the owner, the purchase having taken place with his permission, and the capital becomes the second price, the first having perished before his disposing of it; if it perished before the purchase, the purchase does not enter the mudaraba, the latter having been dissolved before the purchase by the loss of the capital and the extinction of the authorization (al-Mughni 5/28; al-Kafi 2/272; al-Muharrar 351; al-Mubdi' 5/26; al-Insaf 5/436 and 437).
Ibn al-Qattan al-Fasi, may Allah have mercy on him, adds: when the worker buys merchandise with the qirad property and has it carried for hire from country to country in hope of an increase by which he is blessed, and the hire consumes the property: if the hire is owed, whatever remains of it falls on the worker, not on the owner; for he does not sell with a debt except from the property for which he was entrusted with the qirad, nor does the worker charge the owner with it; I know of no disagreement on this: it is an original principle and a consensus (al-Iqna' fi Masa'il al-Ijma' 3/1681, no 3300).
Fifth case: traveling with the mudaraba property. If the capital owner forbade the mudarib to travel with it, travel is not permitted to him by the agreement of the jurists; if he travels, he is liable. If he was permitted, travel is lawful according to the terms of the permission, without disagreement, for the prohibition protected his right and he consented to it; if the property perishes without aggression or negligence, no liability falls on the mudarib (al-Iqna' 1679 and 1680).
The jurists also agree that if the permission covers travel in general, he may not travel in a feared place or to a feared country; if he does, he is liable for what perishes, for he exceeded by doing what was not his to do; if he travels by a safe road, it is permitted. There remains the case where the capital owner neither permitted nor forbade, the country and road being safe: here the scholars differ.
The Shafi'is in the school, Abu Hanifa and Abu Yusuf in a narration from them, Ibn Habib and Sahnun among the Malikis, and the Hanbalis according to one view, hold that the mudarib may not travel with the mudaraba property, even for a nearby journey on a safe road; no burden of travel is permitted to him without the capital owner's permission: travel is a place suspected of danger and involves deception over the money, for fear and ruin arise in it; the mudarib therefore does not own it without the owner's permission. If he travels without permission or contravenes what he was permitted, he is liable, even if he returns from his journey.
The Shafi'is specify: the prohibition bears on travel to what is close to the country of the mudaraba, if the people of the mudaraba's country are not accustomed to go there to sell and the capital owner knows it; otherwise it is permitted, for by their custom that counts among the markets of the country.
The Shafi'is further say: if the mudaraba was concluded in a place unfit for residence, such as a desert, the apparent view, as stated by al-Adhra'i, is that the mudarib may travel with the property to the destination known to both, and may not thereafter undertake a journey to any place other than his residence; if he is permitted, it is lawful according to the permission; if the permission is absolute, he travels, according to the customary practice in safe lands. If he travels without permission or contravenes it, he is liable and sinful, but the mudaraba is not dissolved, even if he returns from the journey. If the merchandise in the country he traveled to is of greater value, or the two values equal, the sale is valid and he obtains his share of the profit, although he exceeded by traveling; and he guarantees the price for which he sold the qirad property during his journey, even if he returns with the price, for the cause of liability, the travel, does not lapse by returning. If the merchandise there is of lesser value, the sale is not valid, unless the shortfall reaches a measure known by ghabn.
They also say: if he is permitted to travel, he does not travel by sea unless expressly stipulated, because of its danger; the general permission to travel does not suffice. If a country has been fixed for him with no road but by sea, he may travel by it even without express mention, the permission carrying over to it, as al-Adhra'i said. The sea meant is the salt sea, as al-Isnawi said. Do the great rivers, like the Nile and the Euphrates, attach to the sea? Al-Adhra'i: I found no text on it. Al-Khatib al-Shirbini: the best is to say that if their danger exceeds that of land travel, it is not permitted, except by express permission, as Ibn Shuhba said.
The Hanafis in the school (Abu Hanifa, Muhammad, and Abu Yusuf in a narration from him), the Malikis according to the widespread view, the Shafi'is according to a view reported by al-Buwayti, and the Hanbalis in the school, permit the mudarib to travel with the mudaraba property, by land and by sea as the Hanafis say, if the capital owner gave an absolute permission without restriction: the mudaraba derives from journeying through the land, and the very term mudaraba indicates it; the mudarib owned it by the absolute contract, the absolute authorization extending to customary practice, which holds in travel as in residence. The purpose of the contract is the growth of the money, more abundantly achieved through travel; the contract was concluded without limit of place, so it follows its absoluteness. The proof from the name itself: the mudaraba derives from journeying through the land, that is, travel, as Allah says:
« and others who travel through the land seeking Allah's bounty »
Surah al-Muzzammil, 20
If the meaning of the mudaraba is therefore travel, it is impossible that the absolute contract of mudaraba contradict it; and because it is the seeking of bounty, Allah, mighty is He, said:
« and seek Allah's bounty »
Surah al-Jumu'ah, 10
Besides, the qirad requires disposing of the money according to custom in seeking its growth, and custom holds in trade, in travel as in residence; the absolute permission therefore embraces custom, including every customary disposition. Some goods are, by custom, bought only in travel, and the money grows only thereby, or by carrying them to the places intended; once it is established that he may buy those goods, it is established that he may travel with them, their growth being achieved only that way.
It is reported from Abu Yusuf that he distinguished, in partnership, between what settles in the homeland and what does not, and between what carries transport and costs and what carries neither; the mudarib follows that: for what carries transport, if he must send it back, the cost of return binds him and harms him, while no cost binds him for what has no transport. Abu Yusuf reports from Abu Hanifa, may Allah have mercy on him: if the money is handed over to him at Kufa while both are its natives, Abu Hanifa said he may not travel with it; if the handover takes place in a city other than Kufa, the mudarib may take it wherever he wishes. The reason for Abu Yusuf's narration: traveling with the money is risking it, and it is not permitted except by the capital owner's permission, express or implied; if the money is handed over in their country without permission to travel, express or implied, he may not travel; if it is handed over elsewhere, the implied permission to return home is established, for a man does not take money as mudaraba and leave his country; handing over the money outside their country therefore amounts to consent to the return home, that is, an authorization by indication. Al-Lakhmi, of the Malikis, holds that if travel belongs to the worker's condition, he has that right, otherwise not (Bada'i' as-Sana'i' 6/71 and 88; Mukhtasar Ikhtilaf al-'Ulama' by at-Tahawi 4/41; al-Jawhara an-Nayyira 3/445 and 446; al-Ikhtiyar 3/24; Mukhtasar al-Wiqaya 2/189; Durrar al-Hukkam 3/468; al-Mudawwana al-Kubra 12/119; al-Ishraf 3/171 and 172, no 1021; al-Muntaqa Sharh al-Muwatta 5/173; ash-Sharh al-Kabir 5/291; Sharh Mukhtasar Khalil 6/210; Tahrir al-Mukhtasar 4/515; at-Taj wa-l-Iklil 4/420; Hashiyat as-Sawi 8/407; al-Iqna' by al-Mawardi 109; al-'Ubab 790; al-Bayan 7/211; Rawdat at-Talibin 3/754 and 756; Mughni al-Muhtaj 3/353; Nihayat al-Muhtaj ma'a Hashiyat ash-Shabramallisi 5/268; an-Najm al-Wahhaj 5/277; al-Mughni 5/24; al-Furu' 4/290; al-Mubdi' 5/11; al-Insaf 5/418 and 419; Kashshaf al-Qina' 3/587 and 588; Sharh Muntaha al-Iradat 3/553 and 554; Matalib Uli an-Nuha 3/504).
The mudarib may make the property grow in residence or in travel. First case, residence: the jurists of the four schools agree in general that if a man hands property to another as mudaraba and the latter works with it in his town or among his people without traveling, no expense is due to him from the mudaraba property, nor at the charge of the capital owner: his staying in his town or among his people is because he is settled there, not because of the mudaraba property. Before the contract he was already living there and spending from his own property; so it is after the mudaraba (al-Mabsut 23/63 and 65; Bada'i' as-Sana'i' 6/105 and 106; Mukhtasar Ikhtilaf al-'Ulama' by at-Tahawi 4/43; al-Jawhara an-Nayyira 3/447; al-Fatawa al-Hindiyya 4/312 and 1/449; Tahrir al-Mukhtasar 4/524; at-Tabsira 11/5247; Hashiyat as-Sawi ala ash-Sharh as-Saghir 8/420; al-Bayan 7/212 and 213; Rawdat at-Talibin 3/755 and 756; Mughni al-Muhtaj 3/354; Nihayat al-Muhtaj 5/268 and 269; an-Najm al-Wahhaj 5/277; ad-Dibaj 2/436; al-Mughni 5/24 and 25; Kashshaf al-Qina' 3/603 and 604; Sharh Muntaha al-Iradat 3/575 and 576; Matalib Uli an-Nuha 3/528 and 529).
Ibn al-Qattan al-Fasi, may Allah have mercy on him, reports that the jurists all agreed that if the mudarib sells in his town without traveling with the money to another country, he may not eat from it under the mudaraba, except al-Layth ibn Sa'd, who said he may lunch from it if occupied with it to the point of not returning home for the midday meal. The consensus of the majority is therefore that he spends nothing from it in residence (al-Iqna' 3/1682, no 3304). The Malikis qualify: that is if the work does not distract him from the sources he lives from; if it distracts him, he is entitled to spend like the traveler: if he has a craft or a trade securing his livelihood and abandons it for the work of the qirad, the expense is due to him like to the one who travels (Tahrir al-Mukhtasar 4/524; at-Tabsira 11/5247; Hashiyat as-Sawi ala ash-Sharh as-Saghir 8/420).
The Hanbalis and the Shafi'is, against their sounder view, allow his expense if a condition or a custom exists. They said: no expense is due to a worker from the mudaraba property, even with travel, for he entered the work for the named share and deserves only it; were he entitled to the expense, it would lead to his taking the profit alone when he profits from no other source, except by a condition, like the agent, or by custom, as Ibn Taymiyya and Ibn al-Qayyim explicitly stated. The condition is valid in travel and in residence, for it stands in return for his work; if the worker's expense is stipulated at a fixed amount, that is good, to cut off dispute; if stipulated in absolute terms, they differed over its amount: he then has the expense of his like by custom, in food and clothing, like the wife and those whose maintenance is owed. Absolute maintenance embraces all customary necessities, so he has food and clothing, which is a permissive matter and does not contradict what preceded, namely that stipulating known dirhams voids it. Ibn Nasr Allah wavered: does the expense come from the capital or from the profit? Al-Bahuti said: rather, it is thought to come from the profit.
If the capital owner is multiple, the worker working for two or more, or for one while holding property for himself or merchandise of another, and stipulated for himself the travel expense: the expense is proportionate to each one's money, or to some of them, for it became due for his work on the money, so proportionate to each. Unless one of the owners stipulated it from his own money while knowing the situation, that is, the worker working on another's money alongside his: it is then his alone, for his entering upon him; if he knows nothing of it, it is apportioned by shares. When the expense has been stipulated for the worker and he claims to have spent from his own property intending reimbursement, his statement is accepted, for he is trustworthy, and he is repaid what he spent, whether the mudaraba money returned to one owner or to several.
If the capital owner meets the worker in a country he had permitted him to travel to with the money, and the money has been liquidated into cash, and the owner takes it back from him: the worker has no expense, including for returning to the country he traveled from; he deserves the expense only while the qirad lasts, and the qirad having ceased, the expense ceased. That is why, if he dies, his burial is not owed, even if stipulated, the qirad being cut off by his death and the expense cut off with it. He was told this because he had been promised the expense of going and returning to the permitted place, believing himself entitled to it going and coming; being cut off from it, he suffers harm (al-Mughni 5/24 and 25; Kashshaf al-Qina' 3/603 and 604; Sharh Muntaha al-Iradat 3/575 and 576; Matalib Uli an-Nuha 3/528 and 529).
The Shafi'is: if the expense is stipulated in travel or in residence, the contract is void according to their sounder view; against it, it is valid, for it belongs to the benefits of the contract (al-Bayan 7/212 and 213; Rawdat at-Talibin 3/755 and 756; Mughni al-Muhtaj 3/354; Nihayat al-Muhtaj 5/268 and 269; an-Najm al-Wahhaj 5/277; ad-Dibaj 2/436).
Second case: making the property grow in travel. The jurists differ: when the mudarib travels with the mudaraba property, does his expense during the journey come from the mudaraba property or from his own? The Shafi'is according to the apparent view and the Hanbalis hold that his expense comes from his own property, not from the mudaraba property: his expense concerns him alone, so it falls on him like the expense of residence, as do the physician's fee and the price of medicine. Besides, he entered the work for the named share of profit and has no other right; were he entitled to the expense, he would take the profit alone when he profits from no other source: the expense may swallow the whole profit and force him to bear it alone, and may even exceed it, forcing him to take it from the capital, which contradicts the purpose of the contract. If the expense is stipulated in travel or residence, the mudaraba is void among the Shafi'is according to their sounder view, as seen.
The Hanbalis hold the stipulation valid: if the mudarib stipulated the expense in residence or travel, that is permitted, and he has what was fixed for him of food, clothing, mount and other things. Ahmad, in al-Athram's narration, prefers that a fixed expense be stipulated; if left absolute, it is valid, this being explicitly reported from him; he then has his food expense but no clothing. Ahmad also said: when it is said "he has his expense", he spends; he is told: he then clothes himself; he replied: no, he has only the expense. If his journey is long and he needs to renew his clothing, the apparent sense of Ahmad's words is that it is permitted; he was told: why then did he not stipulate the clothing? Unless he is in a distant country with a long stay where he needs clothing; he said: when he is permitted over the expense, let him do what does not burden the man's money and is not his aim: that is its meaning.
Al-Qadi and Abu al-Khattab: if the expense is stipulated for him, he has his whole expense of food and clothing according to custom. Ahmad said: he spends in the sense of what he used to spend on himself, without excess in expense and without harming the money. Ahmad did not adopt fixing the expense, for prices vary, becoming scarce and abundant; if the two differ over its amount, Abu al-Khattab said: for food, one refers to the feeding of the expiation; for clothing, to the lesser garment of his like. If he holds property of his own alongside the mudaraba property, or another mudaraba, or merchandise of another, the expense is apportioned to the extent of both monies, the expense being for the journey and the journey being for both; unless the owner stipulated it for him while knowing, in which case it is his alone (al-Mughni 5/24 and 25; Kashshaf al-Qina' 3/603 and 604; Sharh Muntaha al-Iradat 3/575 and 576; Matalib Uli an-Nuha 3/528 and 529; al-Bayan 7/212 and 213; Rawdat at-Talibin 3/755 and 756; Mughni al-Muhtaj 3/354; Nihayat al-Muhtaj 5/268 and 269; an-Najm al-Wahhaj 5/277; ad-Dibaj 2/436).
The Hanafis, the Malikis with four conditions among them, and the Shafi'is against their apparent view, hold that the worker in the mudaraba may spend on himself, on his road and in the city he comes to, from the qirad property, according to custom (Bada'i' as-Sana'i' 6/105 and 106). The reason: his going out and traveling are for the mudaraba property; a man does not bear this hardship to then spend from his own property for a hypothetical profit that may or may not come; he only consented to bear this hardship in consideration of a benefit obtained only by spending from the property in his hand, as regards his subsistence. This is not the case of the agent nor of the one to whom the property was entrusted without mandate: they volunteer in working for another, expecting nothing of his property; nor of the hired laborer, who works for a wage guaranteed at the hirer's charge, obtained with certainty. This one is neither a willing benefactor nor entitled to a guaranteed wage: he has a right to a profit that may or may not come; something known must therefore accrue to him in return for the hardship borne, namely his expense on the money. He is like the partner: when the partner travels with the partnership money, his expense is in that money; so is the mudarib, for he freed himself of his occupations for the mudaraba property, like the woman who frees herself for her husband by staying in his house; but in his town, if he did not free himself for the mudaraba property, he does not deserve the expense.
Further: profit in the mudaraba may exist or not; the rational man does not travel with another's money for a benefit that may or may not exist while advancing his expense from his own property. If the expense did not come from the mudaraba property, people would turn away from mudarabas although the need for them is felt; the undertaking of both parties in this contract, in the state described, therefore amounts to an authorization from the capital owner to the mudarib to spend from the mudaraba property: he is permitted by indication, as if permitted expressly. If one said he spends on himself from his own property, he would obtain nothing of the profit: he would spend his whole share of the profit and profit nothing while bearing the expense. The worker traveled with the money seeking increase, not volunteering; were he not entitled to the expense, his expense would carry off his profit and far more, and it would become an increase enjoyed by the capital owner alone, against the purpose of the qirad. His travel being for the money and its growth, he becomes like a part of the money's costs and of the cost of hiring.
The Hanafis specify: his expense covers his food, his clothing, his oil, the washing of his clothes and his mount, on his journey to the city he comes to, according to custom and to the extent of the expense of his like; all of this is indispensable in travel. Narrations from Abu Hanifa and Abu Yusuf, may Allah have mercy on them, in rare cases, state that oil is not part of the expense, as if they meant a place where oil is not customarily used, the need for it being rare: what is established by custom is not established for the rare. The meaning of Muhammad's narration is travel to places where oil is customarily used, such as the lands of the Hijaz and Iraq. What is due is the expense of the like, according to custom, as for the wife's maintenance; if he spends more, only the like's expense is counted to him, the remainder remaining on his own property; on his return, if garments or food remain with him, he returns them to the mudaraba property, his entitlement having ended with his return to his town, like the pilgrim acting for another who returns what remains of the expense, or the master who lodges his slave-girl with her husband and then occupies her in his service while some of her maintenance remains: the husband may claim it back.
As for medicine, cupping, kohl and the like, they come from his own property, not from the mudaraba property. Al-Hasan reported from Abu Hanifa, may Allah cover them with His mercy, that all of that comes from the mudaraba property: during his journey the mudaraba property serves his need like his own property, and just as he spends his own property on these things as on expenses, so the mudaraba property. The apparent sense of the canonical narration is that he deserves from the mudaraba property only the expense: the price of medicine, the cupper's fee and needed treatment are not part of the expense; see the wife: she deserves none of that from her husband, unlike maintenance; and the need for these things is not customary but rare, and the rare is not deserved by way of custom.
If he hires a servant to serve him on his journey and in the city he comes to, to bake, cook, wash his clothes and do what he cannot do without, it is charged to the mudarib: without hiring, he would have to do these tasks himself, which he cannot avoid; when his servant works, he is freed for work on the mudaraba property, so this hiring benefits the mudaraba. Likewise if he has slave boys working with him on the money: they hold his rank, their expense being on the mudaraba property, for their expense is like his and they work for the money as he does; whoever deserves his own expense from someone deserves his servant's, like the wife from her husband; but she needs no more than one servant in her work for her husband in the house, whereas the mudarib may need boys working with him on the money: hence their expense on the mudaraba property.
Likewise, if the mudarib owns mounts carrying the mudaraba goods to the towns, their fodder is on the mudaraba as long as they are in service, for it is by the fodder that they are strengthened for carrying, and the benefit returns to the mudaraba property. At the time of division, one begins with the capital, which is taken out of the money, and the expense is deducted from what remains; what remains after that is the profit, divided between the mudarib and the owner according to their stipulation. Likewise, if he spent part of the money during his journey before buying anything with it, then bought with the remainder, sold and profited, the owner recovers his capital in full: what the mudarib spent is counted as perished property, and it was shown that the contract remains on the whole after part of the capital perishes, so the entire capital is obtained, and what remains is between the two according to the condition.
If the money is handed to him as mudaraba and he goes out to the Sawad to buy food there, one or two days' journey away, and stays in that place buying and selling: he spends from the mudaraba property on his road and his stay in that place; it is the same for a three days' journey. For he left his homeland only to work on the mudaraba property; if he also stays in that place, he deserves the expense from the mudaraba property, even in the town where his people live. Unless the town is vast, his people living at one end and his trading place at the other, and he stays there to trade without returning to his people: he then has no expense from the mudaraba property, for the quarters of the town count as one quarter; whoever stays in one quarter of the town stays in all of them, and one who leaves his people intending travel is not a traveler until he has left the built-up area of the town, whereas his stay in the town is not for the mudaraba. On this basis it was said: if he goes out to work in a nearby place and returns home before nightfall, he does not spend from the mudaraba property, for he remains among his people when his going out is to a place not requiring him to spend the night away.
If he has family at Kufa and family at Basra, both being his homeland, and he leaves Kufa with the money to trade in Basra: he spends from the mudaraba property on the road; once he has entered Basra, his expense is on his own property as long as he stays there; when he leaves it to return to Kufa, he spends from the mudaraba property during the journey, for his journey out and back is for the mudaraba; in the two towns he is resident among his people, and that stay is not for the mudaraba: in the two towns he spends from his own property.
If the mudarib's family is at Kufa and the capital owner's family at Basra, and he sets out with the money to Basra together with the owner to trade there: his expense is on the road, in Basra and on his return to Kufa, from the mudaraba property, for his stay in Basra is for the mudaraba money, having no family there that would make Basra his place of residence; whether he intends to stay there fifteen days or less makes no difference, for the merchant of a large capital may need such a stay in a country to manage the money: with that intention Basra becomes a borrowed homeland, unlike the case where he has family there or settles there, Basra then becoming his place of residence.
If the money is handed to him as mudaraba while both are at Kufa, Kufa not being the mudarib's homeland, he does not spend from the money as long as he stays at Kufa: his stay there, however considered, is not for the mudaraba; see that before the contract he was already residing there; he therefore does not deserve the expense from the mudaraba property as long as he has not left it. If he leaves it for his homeland and then returns to it for his trade, he spends at Kufa from the mudaraba property, for after the contract his journey made him deserve the expense from the mudaraba property, and Kufa became for him like other countries, his homeland there being borrowed and dismantled by travel; his later return to Kufa or his departure for another city is the same. If he marries there and makes it his home, his expense ceases from the mudaraba property: his stay there, after marrying and establishing his dwelling, is for his family, not for the mudaraba money, and the town becomes like his original homeland (al-Mabsut 23/63 and 65; Bada'i' as-Sana'i' 6/105 and 106; Mukhtasar Ikhtilaf al-'Ulama' by at-Tahawi 4/43; al-Jawhara an-Nayyira 3/447; al-Fatawa al-Hindiyya 4/312 and 1/449).
The Malikis hold that the worker may spend on himself from the qirad property, under four conditions:
When the expense is permitted to him on himself, he spends going and returning according to custom; if he spends extravagantly, only the customary measure is due to him. If a man set out for a need concerning himself, other than family, pilgrimage or raiding, and someone gives him a qirad, even after he hired a mount and provisioned himself for his need: the expense is apportioned between what he spends for his need and the qirad money, to the extent of each. If he spends a hundred for his need and a hundred for the work of the qirad, each half bears what he spends: the hundred is apportioned, half on him and half on the qirad money; if he spends two hundred, the apportionment is made on the third and the two thirds (al-Ishraf 3/176 and 177, no 1025; ash-Sharh al-Kabir 5/300 and 302; Sharh Mukhtasar Khalil 6/218 and 219; Tahrir al-Mukhtasar 4/524 and 525; at-Taj wa-l-Iklil 4/429 and 430; Hashiyat as-Sawi 8/420 and 421).
Al-Mudawwana al-Kubra reports, concerning the merchant-pilgrim who takes money in qirad: Abd al-Rahman ibn al-Qasim said: "We said to Malik: there are among us merchants who know the days of the season and take money in qirad to buy mules, slaves and the like, then set out and attend the season; without that, as one thinks of them, they would not go out to the season. Do they have an expense on the qirad money? Malik said: no. Would he go out on pilgrimage with his expense on the qirad money? He refused that and said: he has no expense, no more than the raider. We said to Malik, about his return: he said: no expense either in his return to his house. We said to him: what of the man who travels from his country to another, takes the money in qirad and journeys with it to his country, where the trade he wants lies? Malik said: no expense for him going nor during his stay among his people, but he has the expense on his return, and he did not liken this to the pilgrim or the raider. I asked Malik about the man who equips himself with money taken in qirad for a journey, hiring a mount, buying clothes and food from the qirad money; then, on the night he meant to set out, a man brings him money and says: take this in qirad; does his expense come from the first money, or is it borne by the two monies together? He said: rather, his expense is borne by the two monies together, to the extent of each" (al-Mudawwana al-Kubra 12/94).
Among the Shafi'is, against their apparent view, the mudarib deserves the expense only from the profit, for the qirad entails the return of the capital. How much expense does he deserve? Two views: his whole expense, for he travels for the money, so his whole expense is on it; or the excess of his travel expense over his expense of residence, for that is the amount the travel required. Does the expense need to be fixed in the contract? Two views: al-Buwayti said it needs to be fixed in the contract of qirad, for it is a share the worker deserves from the qirad money, hence fixed like his share of the profit; according to the other view it needs no fixing, and that is the sounder, for journeys differ and spending varies in them, which cannot be fixed, unlike the worker's share of profit; Abu al-'Abbas and Abu Ishaq said the fixing is very weak. An-Nawawi, may Allah have mercy on him, derives from its affirmation these cases: if the mudarib carries his own property along with the qirad property, the expense is apportioned to the extent of the two monies; the Imam said one may also consider the amount of work on the two monies and apportion it by the wage of their like. Abu al-Faraj al-Sarakhsi: the apportionment occurs only if his property is an amount for which travel is intended. It is recorded that Abu Ali said the like of al-Sarakhsi's statement in al-Ifsah, as did the author of al-Bayan, and Allah knows best (al-Bayan 7/212 and 213; Rawdat at-Talibin 3/755 and 756; Mughni al-Muhtaj 3/354; Nihayat al-Muhtaj 5/268 and 269; an-Najm al-Wahhaj 5/277; ad-Dibaj 2/436).
Still further rules follow: if the worker returns with surplus provisions or with equipment prepared for the journey, like the water skin, he must, on the correct view, return it to the qirad money. If the owner takes the money back from him on the road or in the country he traveled to, he has no expense of return, on the sounder view, like the wife divorced by khul' during a journey. It is stipulated that he not be extravagant but act by custom: what he takes is counted from the profit, and if there is no profit it is a loss against the right of the money; whatever he stays on the road beyond the travelers' usual duration in a country, he takes nothing for that duration. If the travel expense was stipulated at the outset of the qirad, it is an emphasis if we affirm it; otherwise the qirad is void on the sounder view, like the stipulation of the residence expense. According to the other view, it is permitted, being among the benefits of the contract; on that basis, fixing its amount carries two views. Al-Muzani's narration in al-Jami' requires the expense to be stipulated in the contract, fixed; but the authors did not affirm it (al-Bayan 7/212 and 213; Rawdat at-Talibin 3/755 and 756; Mughni al-Muhtaj 3/354; Nihayat al-Muhtaj 5/268 and 269; an-Najm al-Wahhaj 5/277; ad-Dibaj 2/436).