Jlock is the fu b jecio f the contraft, (-whence it is that the partnerfliip
is referred to the Jlock, by each partner faying to the other “ I make
“ you my partner in fjich Rock,”— and alfo, that the Specification of
the capital is an eflential,)— and, 'fuch being the cafe, it is indifpenf-
ably requifite that the Rock be participated in by both. It is other-
wife in Mozdribat, as that is not partnerjhip, fince it implies nothing
more than that, as the manager is to aft for the proprietor o f the
flock, he is confequently entitled to a fhare in the profit, as wages on
account p f his labour, which is different from the cafe in queftion,
-where the profit is a branch o f the Jlock, and not wages fo r labour.
This is a grand leading principle with Zijfer and Shafei, infomuch
that i(arguing upon this ground) they allege it to be indifpeufable, in
a contraft of partnerfliip, that the flock o f both partners be of the
fame fpeciest for, if otherwife, {as where one is pofiefled of dirms
and the .other o f deenars,') they hold that the contraft is invalid be-
•caufe of the capital not being participated in by both: and they alfo
allege (upon the fame principle) that admixture is an eflential: and
likewife, that it is unlawful to ftipulate an excefs of profit to either
partner, where their flocks are equal, as the profit is a branch of the
flock:— and alfo, that partnerfliip in arts* and trades-j- is illegal, as
in thofe there is no flock, (as fliall be hereafter explained.)— The
arguments of our doftors upon this point are twofold.— F i r s t ,
partnerfliip in profit is referred to the contraft, and not to the flocks,
becaufe, as the contraft is termed “ a contraft of partnerfliip,” it is
indifpenlable that the property of the term partnerjhip exift in it ; and,
fuch being the cafe, it follows that the admixture is not eflential.—
S e c o n d l y , as-the money [of which the flock confifts] is not fpecified,
the profit is not derived from the capital, nor indeed from any thing
elle than the tranfaftions [which are had with the flock;] becaufe
each party is a principal, with refpeft to me half of the flock, and an
* Arab. Sbirkat Takatbal (fynonymous with Shirket Sinnai.)
f Arab. Sbirkat Ammdh
B o o k XIV- P A R T N E R S H I P . 3 ' 9
agent with refpeft to the other half; and, as it hence appears that part-
nerfhip may be eftablifhed, in point of tranfa&ion, without admixture
of flocks, it follows that it may alfo be eftablifhed in the thing which
accrues from tranfaftion, (namely, the profit,') without fuch admixture;
and, as the contraft of partnerfliip thus becomes fimilar to a
contraft of Mozdribat, a fimilarity of fpecies in the flocks, and an
equality of profit, are not eflentials, although the flock of each be
equal. A partnerfliip in arts is alfo lawful on the fame principle.
A c o n t r a c t of partnerfliip, which ftipulates any particular fum
out of the profit for one of the partners, is unlawful, as this, condition
is a means of deftroying partnerfliip, fince it is poffihle that no
more profit may be acquired altogether, than the fum fc ftipulated.
Correfpondent to this is a cafe of cultivation; that is to fay, where
the parties, in a compaft of cultivation,, ftipulate a. particular quantity
of produce to one of them, (that is, to the cultivator or to the landlord,)-
the compaft is invalid; becaufe fuch a ftipulation; is a means of de-
ftroying partnerfliip;. and in cultivation it is eflential that the produce:
of the land be equally participated between thofe perfons..
E a c h of the partners,ima contraft either ef reGiprocalpartnerfhlp or
of partnerfliip in aft'ual flock, isat liberty to givejiis flock in the manner
of a Bazdt; becaufe it is cuflomary fo to do in contrafts of partnerfliip;
and alfo,. becaufe either partner is- at. liberty to hire any perfon to
work for the acquifition of profit; and as the acquifition of profit'
without any return isftill left objeftionable than hhing: with the fame
view, he is confequently authorifed to adopt the other mode a■ fo rtiori.
In. the fame manner alfo, either of them is- at liberty to lodge
this capital as a depofit, as this is cuflomary, and fcmetimes neoeffary,
among merchants. Each of them is alfo at liberty to give hiscapital
in the way of Mozdribat, becaufe,, as Mozdribat is fubordinate to
partnerfliip either by reciprocity, or in traffic, it follows that? as
contraft of partnerfliip comprehends Mozdribat. It is recorded from
j Haneefa
Partnerfliip ‘
does not admit
a fpecifi-
cation o f profit
in behalf
o f either,
partner.-
Either parti
ner may make
over his flock,
in the manner
o f a B azaty
or lodge it as4
a depofit ;
or intruft it
to the care
o f a manager^ -
by Mozdribat,