Partnerfhip
by right of
property is
either optional,
or compulßve ;
and does not
admit o f either
partner
a&ing with
refpeft to the
other’s ihare.
Partnerfhip
by contrail .
Shirk a t Milk applies where two or more perfons are proprietors
• of one thing;— and it is.of two different natures, o p tio n a l and com p u ls
i v e :— o p tio n a l, where two perfons make a joint purchafe of one fpe-
cific article; or where it is prefented to them , as a gift, and they
accept of it; or (where it is deft to them, jointly, by bequefl, and
they accept of i t ;— or where they both obtain pofleffion, by con-
queflr, of one fpecific article in an enemy’ s country;— or where they
unite their refpeftiv.e -properties in fuch a way as that one is not dif-
tinguifhable from the other, (fuch as the mixture of w h e a l with
w h e a t ,~)— or here -it may be d iffic u lt to diflinguifh them, (as in a
mixture of w h e a t with b a r le y :)—and c om p u lfiv e , where the properties
of two perfons become united without their aft, under fuch circum-
ftanees as render it difficult or impoffible to diftinguifh between them;
x i , where tw o perfons inherit, o n e property. In this fpecies of partnerfhip,
therefore, it is not lawful for one partner to perform any aft
-with refpeft to the other’ s fhare, without his permiffion, each being
as a fir a n g e r with refpeft:to the other’s fhare. It is, however, lawful
for either partner to fell h is ow n fhare to the other partner, in all
the cafes here Hated;— and he may alfo fell his fhare to o th e r s , with-
■ out" his partner’s confent, excepting only in; cafes of a jfo c ia tio n or a d m
ix tu r e of property, for in both thefe infiances one partner cannot
lawfully fell the .fhare .of the other to a third perfon without his
partner’s permiffion. The diflinftions upon this point are related in
the K a fd y a t-a l-M o o n tih e e .
Shir-kat.Akid, or p a r tn e r fh ip b y c o n t r a il, is effefted by p r o p o fa l
and c d n fe n t,— that is, by one perfon faying to another, .“ I have
“ made you my partner in fuch a property,” &c- and the other replying
“ I confent:” and it is a condition of the contraft that the
-concern'refpefting which it is made be of fuch a nature as to admit of
delegation, in order that the acqiiifition arifiug from it may be participated
in .by both parties, .and that thus the effeft or defign may
be
be eflablifhed,-—in other words, that the acquifition may become
equally the property of both.
P a r t n e r s h i p by compaEl is of four kinds* viz.
I , S h ir k a t-M o fd w iz a t, or partnerfhip by r e c ip r o c ity .
II. S h ir k a t-A im d n , or partnerfhip in t r a ffic * .
III. S b ir k a t- S in n a ia , or partnerfhip in a r ts .
IV. S h ir k a t-W o o d jo o h , or partnerfhip upon perfonal c r e d it.
- S h i r k a t -M o f a w i z a t , or partnerfhip by r e c ip r o c ity , is where two
men, being the equals of each other, in poiht o f p r o p e r ty , p r iv ile g e s , and
r e lig io u s p e r fu a jio n , enter into a contraft of co-partnerfhip;— becaufe
this, fpecies of partnerfhip is an u n iv e r fa l partnerfhip in all tranf-
aftions, where each partner reciprocally commits the bufinefs of
the partnerfhip to the other, without limitation or reftriftion; for
the term M o fd w iz a t, in its literal fenfe, means e q u a lity . It is therefore
indifpenfable that a perfeft equality exifl throughout, in the p r o p
e r t y , that is, in the p a r tn e r fh ip c a p ita l, fuch as d irm s and d e en d r s.—
(No regard, however, is paid to an excefs in any thing b e y o n d the’
partnerfhip capital, fuch as goods or effefts,, lands, or debts.) In
the fame manner, it is indifpenfable that an equality exift with refpeft
to privileges-f; becaufe, if either partner were endowed with
privileges not veiled in the other, there could be no perfeft equality.
In the fame manner alfo, equality is indifpenfable in point of r e lig io n
and of f e l l , as fhall be hereafter demonflrated. Partnerfhip by reciprocity
is lawful, upon a favourable conftruftion;— -but, according
to analogy, it is »«lawful. This, alfo, is one opinion of Shafei,
* T h e commentators define it partnerjhip in purchafe and fate. T h e term docs not
admit o f any literal tranflation.
f Arab. TiJJirrafi that is, power o f attion,
V o i . II. Q 3
is o f four de-
fcriptions> by
reciprocity, in
traffic, in arts,
and upon per-
Jonal credit.
Defcriptionof
parlnerffip by
reciprocity■.
It requires
equality in
point o f capu
tal,
and o f privi*
leges;
and fimiîarity
o f religion and
and o ffeft*
Mâlik