3°+-
?parmerCht becomes'a Shirkat Ainan,. becaufe equality in point o f property
intrajit; (fuch .as is capable of conftituting capital ji'ocK) is a condition efiential
to a contradt -of reciprocity throughout, and this does not exift in the
prefent cafe, as the other partner is not a participator in the property
fo acquired by 'gift or inheritance, no principle of partnerfhip therein
appearing with refpedt to him. The partnerfhip by reciprocity, however,
is refolved into a Shirkat Ainan, or partnerfhip in traffic,
as the cafe admits of fuch a partnerfhip, equality not being effential
thereto;-in' reciprocity; on the other hand, it is efiential, andconfe-
quently reciprocity no longer continues. - The reafon of this sis that a
contract of reciprocity is not of an abfolute nature: now, in a contract
which is not of an abfolute nature, the rules withcrefpedt to its continuance
and its commencement are one and the fame; hence an increafe of
the capital flock {of either parties] during its continuance is equivalent
to an inequality in its commencement; and as an. inequality of
capital, in the commencement of a partnerfhip of reciprocity, is prohibitory
to contradting it, fo, in the fame manner, fuch inequality taking
place during its continuance prohibits i t :— the contract of reciprocity,
anlefsthepro- .1 c ^ r r r • . . . . .
p e r tyb e o fa therefore, terminates, ft one or two partners in reciprocity inherit
pfb“ eof”con goods or effects*, thefe are his foie property ; but the con trad! of reci-
iUtuting/wA proeity does not become null:; (and the fame rule alfo obtains if one
of them inherit land;) becaufe, as thofe articles are incapable of
conftituting capital flock, equality with refpedt to them is not a
condition.
'• Arab. Rakbt wa Malta. In oppofitiou to Mat,
SECTION.
S E C T I O N .
Partnership by reciprocity, cannot be contradled but in dirms, P|rtne).0.
deenars, or fludluatingyb/oor*. Mdlik alleges that fuch a partnerfhip b y r e c i p r o t i t y
is lawful in goods, and effedts, and alfo in all articles eftimable by {„"{„aed
weight, or meafurement of capacity, where the fpecies is the fame, b u t in cajh-,
becaufe a partnerfhip fo contradled refpedts a known and fpecified
capital, whence thole articles are equivalent to money. It is other-
wife in a contradt of Moziribat; for that is reftridted folely to cajh,
the legality of it being contrary to analogy, fince under this fpecies of
engagement a profit is acquired on property concerning which there is
no refponfibility, (as the manager is not refponfible for the Mozaribat
ftock,) and the prophet has forbidden the acquifition of gain upon
property in which there is no refponfibility; the contradt, therefore,
muft not go beyond what is prefcribed by the law ; and the only thing
in which the l'aw declares Mozaribat to be lawful is cajh. The arguments
of our dodtors upon this point are twofold.—First, if a
contradt of reciprocity, in goods and effedts, were held to be legal (as;
maintained by Malik,) it would neceflarily induce a profit upon a property
concerning which there is no refponfibility; becaufe, upon each
partner in reciprocity felling his own particular capital, (confifting of
goods and effects J) if the goods of one partner produce a greater price
than the goods of the other, the excefs of profit upon the goods of the
former would be due to the latter; and this would be a profit from
property for which the perfon who gains by it is not refponfible, and
in which he has no right; becaufe in this inftance the contradt is
* Arab. Faloos-Rabiha. Fa/oos is a copper coin o f uncertain value. Faloos-Rabiha
means copper coin on which an advantage may M gained, (owing to the fluctuation .in its
value,) and hence the term Rabiha is here rendered fluctuating.
VoL. II. R r connedted