The term reciprocity
niuft
alfo be ex-
prefled in. the
con tr aft.
It is- lawful’
between free
adults, whether
Mujful-
mans or Zimin
ces.
Mdlik fays r I know not what Mofawizat is !”— Analogy would fugged:
that a partnerfhip of this defcription is unlawful,— becaufe it;
includes a power of agency with refpeft to an unknown fubjeft, and-
alfo an obligation of fecurity with refpeft to a thing undefined; and
as each of thefe, individually, is illegal, it follows that, when united,,
they are illegal a fortiori. The reafbn for a more favourable con-
ftruftion upon this point is that the prophet has faid “ • Enter into-
“ partnerfhip's by reciprocity, for in that there is. great advantage.’”
In this manner, alfo, men had tranfaftions together, no perfon forbidding
them. Analogy, therefore, is abandoned- Ignorance, moreover,
in the contract in queflion, is lawful as a dependant of another
circumftance,— that is, as a dependant of equality,— in the fame:
manner as in a contraft of Mozdribat, where the contrail: comprehends
a eommiffion of agency for the purchafe and fale of articles unknown,
which eommiffion is in itfelf illegal-, but is neverthelefs legal
in a contraft of Mozdribat, as a dependant of the contrail; and fo alfo
in the cafe in queflion..
A c o n t r a c t of reciprocity is not complete unlejS reciprocityhe
exprefsly mentioned in it, by the parties declaring we are partners,.
“ in a partnerjhip by reciprocity — becaufe the conditions-of it cannot
otherwife be known. I f, however, in entering into fuch a contrail,
they declare all the conditions of it, the contrail is lawful, although:
the term reciprocity be not particularly expreffed in it , becaufe regard;
is had to the fitnfe, and not to the letter.
A c o n t r a c t o f reciprocity is lawful'between- two-adults who are-
free, whether they be both Mujjulmans, or both Zimmees, fince, in,
either cafe, an equality exifts between the parties. I f one of them,,
alfo, be a fcripturai Zimmee *, and the other a Pagan, the contrail is-
lawfui, becaufe infidelity is one. general defcription with relpeft to.
fa ith , and hence equality in point of religion exifts in this inftance..
* A Jeivijh or Cbrijlian fubjeft. o f the Mujjulman; government..
A CONTRACT
A .c o n t r a c t of reciprocity is not lawful between a {lave and a fu[ between a
Treeman, or between an infant and an adult; becaufe equality does not
exift in thofe inftances;— as an adult freeman is competent to tranfaft an inj-ant al!d
bufinefs, and to give bail, whereas a Have is not competent in either an ad“1'’
of thofe points, but by confent of his mafter; and an infant is not
at all c om p e t e n t to give bail, nor to tranfaft bufinefs, but by permifiion
of his guardian.
A c o n t r a c t of reciprocity is not lawful between a Mujjulman
and an infidel, according'to Haneefa and Mohammed. Aboo Toofaf i„f dd:
alleges that it is lawful, becaufe equality exifts between thofe in point
of agency and bail, fince in the fame manner as it is lawful for a Muf-
fulman to be an agent or a furety, fo is it alfo for an infidel: and with
refpeft to thofe particular tranfaftions which are lawful to one of thefe,
and not to the other (fuch, for inftance, as dealings in wine or pork,')
they are not regarded, in the fame manner as a fimilar difference is not
regarded where a Haneefite enters into a contraft of reciprocity with
a follower of Shafei, for here the contraft is lawful, notwithftanding
the different tenets o f thofe fefts refpefting wilful dealings in the off-
fpringof lafmeeas*, which are held to be lawful by the followers of
Shafei-, but which are .deemed illegal by the Haneefites, as being (according
to them) forbidden. Such a contraft, however, between
a Mujjulman and a Zimmee is neverthelefs abominable (according to
Aboo Toofaf;) as Zimmees frequently enter into engagements of an
unlawful nature, in confequence of which a Mujjulman might fall
into what is prohibited. T h e argument of Haneefa and Mohammed
is that the two perfons in queflion are not upon an equality in point
ofpower o f a At on,— becaufe, if a Zimmee purchafe wine or pork with the
capital flock, the purchafe is valid, whereas, if a Mujjulman were to
* Tafmeias are camels turned loofe and foffered'to pafture at large without a herdfman,
•as being dedicated to G ob*