3° 8
to be ufed for any other purpofe as making ornaments for the
perfon, and fo forth:) uncoined gold or filver, therefore, does not
con(Hf ute value, ^cept where the ufe of it in that way is cuftomary,.
in ."KK-u cale it is the fame as coin, and confequently a reprefentative
of property, and as fuch capable of conftituting capital flock. It is to
' be obferved that what was before advanced, that “ partnerlhip by re-
“ ciprocity is not lawful in any thing beyond dirms, deendrs, and
“ current fa lo o sf applies to all articles of weight and meafurement of
capacity, or which are of a heterogeneous nature*. The illegality of
reciprocal partnerfhip in thefe articles is admitted by all our dodtors,
provided the partnerjhip be contrafledprevious to the union or admixture
offiocks, in which cale it is illegal, and each partner receives the profit
arifing from his own particular commodity, and the- lofs upon it
alfo falls on him. If, alfo, two perfons mix homogeneous flocks, and
then enter into a contract of partnerfhip, Aboo Toofaf holds the rule to
be the fame, and that a partnerfhip by right o f property, is here efta-
blilhed, not a partnerlhip by reciprocity. Such, alfo-, is the dodtrine
wMohZtlrfi t^le Rawdyet. According to Mohammed, the contradt of
in homoge- partnerfhip, in this inftance, holds good. The refult of this differ-
ajier admix-’ ence ° f opinion appears where the property of both partners is equal,
turc- and they ftipulate a larger profit to one, and a fmaller profit to the
other-,— for in this cafe, according to Aboo Toofaf, each is to receive
in proportion to his property, and he in whole favour the larger
profit had been ftipulated' is not on that account entitled to receive
any exeefs; but, according to Mohammed, each is to receive agreeably
to what was ftipulated. The ground upon which the Zahir Rawayet
proceeds is that articles of weight and meafurement of capacity-j-, and
fo forth, are diftinguilhable by Ipecification after admixture, in the
fame manner as before. The argument of Mohammed is that the
articles in queftion are, in one lhape, value; for if a perfon were to
* Arab. Jdwee Mootkarib, that is, refembling in appearance, but differing in fpecies.
t Meaning, always grain, or liquids, fuch as are capable o f admixture -, in > oppofition to
Rakht and Matter, that is goods and cffefls.
fell
fell goods for fuch articles, fo that the price of the goods, (confifting
of thofe articles,) is a debt upon the purchafer, it is lawful; and, in
another lhape, they are fubjedts offale, as admitting of fpecification:
attention, therefore, is paid to both thefe circumftances, with relpect
to fituations both of admixture and of «»«-admixture: in other words,
partnerlhip in them, before admixture, is unlawful, as they are then
fubjedts offa le ; but after adriiixture it is lawful, as they then confti-
tute value: contrary to the cafe of goods and effefis of any other
defeription, fince thefe are not value in any lhape. If the flocks [of
the refp'edtive parties] be of two different fpecies, fuch as barley and
-wheat, or olives and pepper, and the proprietor unite them, and then
enter into a contradt of partnerlhip, it is unlawful according to all our
dodfors. The reafon for this diftinction, according to Mohammed, is
that whatever is mixed, of one fpecies, is Zoodtal Imfal* ; and whatever
is mixed, of two different fpecies, is Zoodtal Keem\: now as
things of different fpecies, when mixed together, are Zobatal-Keem,
ignorance exifts with relpedt to them, (becaufe, it is requilite that
appraifers fix the value of them ] ,) and they are therefore incapable
of conftituting capital flock, in the fame manner as any other goods
or effedts:— a partnerlhip in them is confequently invalid; and fuch
being the cafe, they become fubjedt to the rules in admixture of property,
as treated of under the head of Decrees, in the Jama Sagheef,
and which lhall be fully fet forth (in this work) when we treat of
depofts §.
W h e r e
* Thin g s compenfable by an equal quantity o f their own fpecies, (fuch as wheat for
wheat, barley for barley, &c .)
+ T h in g s compenfable only by an equivalent in money.
$ Before the refpeclive proportion o f each partner* in the capital ffocfc* can b:e
afeertained.
§ T h e arguments throughout this and the preceding paffages are fo much involved
in fubtle diftindtion and perplexing cafuiffry, and are in many places fo little capable of
an intelligible tranllation, (from the impofiibility o f rendering clearly the technical terms
• which
I t cannot be
contradtedre-
fpefting heterogeneous
flocks.