Defcriptîon
o f partner-
Ihip upon ere•
dit. '
I t may in clude
récif ro»
city.
Each partner
is agent for
the other.
is incumbent upon the parties; whence any bufinefsengaged in by either'
is incumbent upon the other alfo; and)the other is.accordinp-ly entitled
to- the payment, as. one of them engaging to. perform- any work
equally affedls the. other; for if the other alfo were not fubjeft to
this obligation, he would not be entitled to payment:, the partnerfhip
in queftion, therefore, is equivalent to a partnerfhip by reciprocity*
with refpedt to the.obligation of w.ork, and the taking poffeflion,,
of the payment for it.
S h i r k a t W a d j o o h , or partnerfhip upon credit, is where-two
perfons, not being pofleffed of any property, become. partners by
agreeing to purchase goods jointly, upon their, perfonal.. credit*,
(without immediately paying the price) and to fell them on their
joint account. This fpecies of partnerfhip is termed Wadjooh, for
this reafon, that no perfon can purchafe articles upon credit but one
poflefled of perfbnal notoriety \JVijahit\ among mankind. It may
lawfully conftitute a partnerjhip by reciprocity, becaufe each partner
may become both bail and agent for the other. Where, therefore,
two perfons, capable of bail, make a purchafe of any article, on condition
that it fhall be held between them in equal fhares, introducing
the term. “ by reciprocity" into their agreement,, it is a contradl of reciprocity.
If, on the other hand, they exprefs their agreement
merely in general terms, it is a Shirkat Jinan, or partnerjhip in
traffic, becaufe when thus generally expreffed, it is conduced in the
manner of fuch a partnerfhip. The legality of the partnerfhip in
queftion is aecording to our dodtors. Shafe'i alleges that it is illegal;
The arguments on both fides have been already recited.
I n' p a r tn e r fh ip u p on c r e d it , e a ch p a r tn e r is a g en t on b e h a l f o f the
o th e r , w i t h re fp ed l to w h a t h e p u r c h a fe s ;— b e caufo a n y adt w h ic h
affedts. an o th e r is u n law fu l , e x c e p t i t be p e r fo rm ed in v ir tu e e ith e r o f
* Arab, W ija b it . Literally, p e r fo n a l p r e fe n c e , or n o to r ie ty .. .
agency
B o o k XIV. P A R T N E R S H I P . 3 2 5
ao-ency or of authority * ; and as authority does not exift in the pre-
fent inftance, agency is certified.
I r the partners agree that what they purchafe fhall be held between
them in equal fhares, and that the profit alfo fhall be equally
divided, it is lawful: but it is not lawful, in fuch a cafe, to ftipulate
an excefs of profit, to one of them. If, however, they agree that
what they purchafe fhall be held between them in three lots, and that
the profit alfo fhall be divided into three lots ■ }•, it is lawful. In fhort,
if the profit be in proportion to the right of property it is lawful, but
otherwife not. The reafon of this is that men are entitled to profit
only on account of Jl'ock, management, or refponjibility ; thus the proprietor
of a flock is entitled to profit in virtue of the flock t a manager
in virtue of his management -y and a mafter artifan,, who-employs
a fcholar or apprentice at half wages or t&rd'wages (for inftance)
is entitled to the profit arifing from his work in virtue of his refpon-
fibility for fuch work;— (whence it is that if a perfon fay to another
“ Tranfadl with your own flock on condition that the profit be-
“ mine,” it is unlawful, becaufe in. fuch a cafe, no one of the above'
particulars exifts.) As men, therefore, are entitled to profit only on
fome one of thefe three principles, and as, in a partnerfhip of credit,
the title to profit is in virtue o f refponfibility (as aforefaid,)— and as,
alfo, refponfibility attaches in proportion to the right of property in
the thing purchafed,— it follows that whatever exceeds the proportion
of fucK right of property is a profit upon a thing concerning which
there is no refponfibility. Now the ftipulation of profit from a thing
concerning which there is no refponfibility is not valid except in a-
contradl of Mozdribat ', and a partnerfhip upon credit has not-* the
property of a contradl' of Mo%&nbat: I t is otherwife in a'partnerfhip
* A ra b . Willayat. M e an in g th e au th ority derived from natural o r perfonal right*
fuch as that o f a guardian or a proprietor.
T he profit o f
each partner
muft be in
proportion to
the fhare o f
each in the
adventure.