T h e profit to
each partner
muft be in
proportion to
the ltock.
A contradt o f
partnerfhip is
annulled by
the death or
apoftacy o f
either partner.;
whether the
'furvivor be
aware o f that
event or not.
valid contrail, from the. property of another perfon, '(namely, from
his mule or his bucket,) it follows that he owes aflire for the fame.
In all cafes of invalid partnerfhip, the profit is in proportion to the
flock.; any ftipulation, therefore, of an excefs of profit to either partner
is null. Accordingly, if the flock be between the partners in
equal Jhares, and they agree to their profit 'being in three lots, fuch
agreement is null, and the profit muft.be equally divided; becaufe, as
the profit which accrues is a dependant of the flock, the degree of it
muft be in proportion to the flock, in the fame manner as, in a contrail
of cultivation, the grain w'hich is reaped is a dependant of the feed.
The reafon of this is that a claim to an excefs profit can exift only in
virtue of a previous fpecific agreement: but in the cafe in queftion
this agreement has become invalid in confequence of the invalidity of
-the contrail of partnerfhip itfelf: the claim, therefore, remains in
force only in proportion to the capital flock.
If one of two partners die, or apoftatize, and be united to a
foreign country*, the contraft of partnerfhip is annulled;— becaufe
a contract of partnerfhip comprehends an appointment of agency,
which is effential to the exiftence of partnerfhip, for the reafons already
afligned: now agency is annulled by death', and it is alfo
annulled by the circumftance of defertion to a foreign country during
apoftacy, where the Kazee ifliies a decree in confequence of fueh defertion,
becaufe that is equivalent to death,— as has been already fhewn
■ in treating of afojlates: upon the agency, therefore, being annulled,
■ the contrail of partnerfhip is alfo annulled. It is alfo to be obferved
that the furviving partner being aware of the deceafe of his fellow,
or otherwife, makes no difference whatever with refpeft to the dif-
folution of the partnerfhip ; becaufe as, in the cafe in queftion, the
j * T h a t is, be expatriated b y a d ecree o f the B U S Mued in -co n fequ en c e o f his ap ofta
c y and defertion. (S e e Inftitutes, p. 229.)
furvivor
furvivbr is virtually difcharged from the agency by the deceafe of hist
partner, it is not effential that he be informed of that event. It is
otherwife where one of two partners breaks the contrail of partner-
fliip, for the effeil of fuch a breach depends upon the knowledge of
the other partner, as the breach is a defigned dijfolution o f the contralh
S.E C T I O N.
I t is not lawful for either partner to pay the Zakdt upon, the
other’s property without his permiflion, as the payment of Zakai is
not a branch of traffic.
If each of the partners give a general pefmiffloit to the other to
pay the Zakdt upon his property, and each fhould afterwards firft pay
the Zakdt upon his own particular fhare in the {lock, atld then pay
Zakdt Upon hh partner's Ihare, in this cafe he who tajl paid the Zakdt
is refponfible, whether he be aware of the other having already paid it
Or not. This is according to Haneefa. The two difciples allege that
he is not refponfible, where he is not aware of that circumflalice.
What is here advanced proceeds upon a fuppofitiori of bach partner
having paid the Zakdt upon their refpeitive fhares of flock fuCcefjrifflj,
and not all together; for where they have paid it all together, each Is
refponfible for the other’ s proportion of it« A correfpOndent difference
of opinion obtains where any indifferent peffon dir efts another to
pay the Zakai upon his property, and the other accordingly pays the
Zakdt upon hi's property after the perfon \fho fo directed him
had already paid it; for, according to Haneefa, the perfon ailing
under fuch direction is refponfible, whether he pay the Zakdt
with a knowledge of the above circumftance, or otherwife« The
two difciples, on the other hand, maintain that he is not refponfible
V ol. II. U u unlefs
A'perfon c iri-
tiot pay Zakdt
upon his
partner’s property
without
hispermiflion.
Cafe o f mutual
permiflion
to pay
Zakdt*