12.2 平等的同伴——Al-Inan
12.2 The Company of Equal - Al-Inan
这是两个身体(Abdan)的合伙,即两人以各自的身体劳动参与合作。具体而言,两人各自投入劳动,共同工作,并按约定分配利润。这种合伙被称为“Inan”合伙,因为双方在处置权上是平等的。“Inan”一词原指两名骑手在赛马中的情形:如果两匹马相等、比赛条件相等,那么它们的缰绳(‘Inan)也是相等的。这种合伙形式为圣行(Sunnah)所允许,并且得到了圣门弟子的一致同意(Ijma'a)。自先知ﷺ及圣门弟子的时代起,人们就已经采用这种合伙形式。
This is two bodies (Abdan) associating with their properties. Namely, two persons associate with their properties and share the work dividing the profit between them. It is called a company of ‘Inan because they are equal in their right of disposal where ‘Inan means two riders in a race if their horses are equal and their race is equal, so their bridles (‘Inan) are equal. This form of company is allowed by the Sunnah (of the Prophet) and Ijma’a of the Sahabah (consensus of the Companions). People have entered into this form of partnership since the time of the Prophet (pbuh) and the Sahabah.
在这种类型的合伙中,资本以货币体现,因为货币代表财产和销售的价值。若非在订立合同时已将货物折算为货币价值,则不允许以货物入伙。此时的价值即为资本。资本须是确定的、可以随时支配的。因此,不允许以未知的资本、不在场的财产或债务作为资本组建合伙,因为资本在分配时需要被确定,而债务不能立即支配,而这正是合伙的目的所在。两方的出资份额不必相等,也不必同类,但须以同一标准进行估价,使两份出资合为一体。因此,例如以埃及镑和叙利亚镑合伙是允许的,但须以同一价值进行估算,使二者之间没有差别,成为同类之物。 合伙的资本须是一项统一、共有的财产,使任何一方都不能将自己的财产与对方的财产区分开来。同时,还要求两位合伙人对资本都拥有处置权。 平等合伙(‘Inan)建立在委托与信任之上。合伙人通过交付财产、彼此授权处置财产来相互信任。合伙一经成立,便成为一个整体。合伙人有义务亲自参与工作,因为合伙是建立在他们自身之上的。他们中任何一方都不得委派他人代表自己为合伙工作。合伙作为一个整体,可以雇用其所愿雇用之人,并使用其所喜欢之人的劳动,而这些人是为合伙服务的雇员,而非为某一位合伙人服务的雇员。
In this type of company, the capital is represented by money, because money represents the value of the properties and the sales. It is not allowed to enter into partnership over merchandise unless it was evaluated in monetary terms at the time of contract. Its value at this time represents the capital. It is a condition that the capital be defined and disposable. The partnership is thus not allowed to be formed over an unknown capital, absent property or a debt as the capital has to be referred to at the time of division and because the debt cannot be disposed with immediately and this is the aim of the company. It is not necessary that the two property shares are equal or of the same kind. However, they must be evaluated by one measure so that both shares become one property. It is, therefore, valid to become partners with, for example, Egyptian and Syrian money, but these should be evaluated by one value so that there is no difference between them and they become one of the same kind. It is a condition that the capital of the company be one property and common for both such that neither partner can differentiate his property from the other’s. It is also conditional that the two partners have authority over the capital. The ‘Inan (equal) company is based on delegation and trust. The partners trust each other through handing over properties, and by delegating permission to each other to dispose of property. Once the company has been formed it becomes one entity. It is obligatory for the partners to start work themselves as the company is established upon their bodies. Neither of them is allowed to delegate another person to work for the company on his behalf. The company as a whole employs whom it wants and uses the body of whom it likes as its employee not as an employee for one of the partners.
允许两个或两个以上的合伙人中的任何一人,以他认为对公司有利的任何方式进行贸易。每位合伙人也可以收取货款、进行采购,为债务提起诉讼并要求偿还,汇出和接收汇款,以及退回有瑕疵的货物。每位合伙人都可以租赁公司的资本,并可出租公司的资产,因为公司从中获得的收益与商品本身相当,这与买卖的情形类似。例如,每位合伙人都可以出售一辆汽车之类的物品,或者以可供出售的商品的身份将其出租。公司的收益就如同商品本身,其价值与商品等同。
It is allowed for any of the two or more partners to trade in whatever way He feels is beneficial to the company. Each of the partners is also allowed to collect the price and make purchases, to litigate for and request payment of debt, to remit and accept remittance, and to return faulty goods. Each is allowed to hire and lease the capital of the company, as the benefits to the company are as good as the commodities, in a similar way to selling and buying. Each partner would be allowed to sell an item like a car for example, or to lease it in its capacity as a commodity for sale. The benefit to the company becomes like the commodity itself and is as good as this.
不以两位合伙人股份相等为条件,但必须在处置权上平等。就资本而言,合伙人的股份可以不同,也可以相等,而利润则按他们所约定的比例分配。因此,约定利润平等,或约定给予某一方更多,都是有效的。正如阿卜杜勒-拉扎格在《Al-Jami》中所传,阿里(愿真主喜悦他)说:“利润依照他们所约定的。” 至于伊南合伙('Inan company)中的亏损,则只依资本份额承担。如果他们的股份价值相等,亏损就平均分担;如果资本分为三份,亏损也按三份分担。如果他们约定了其他办法,他们的约定不被采纳。亏损的规则仍然执行,不考虑他们的约定,而是依据各自资本份额的比例来分担亏损。这是因为劳动不会损失财产,而只会损失所付出的努力。因此亏损由资本承担,并按合伙人的股份分配。这是因为合伙是一种代理(Wakala)形式,其原则是:代理人不对亏损负责,亏损由委托人的财产承担。阿卜杜勒-拉扎格在《Al-Jami》中从阿里(愿真主喜悦他)传述:“亏损(Al-Wadhi'a)由资本承担,利润依照他们所约定的。”
It is not conditional that the two partners have equal shares, but it is necessary that they are equal in the right of disposal. With regard to the capital, it is valid that the partners have different or equal shares, while the profit is divided as they stipulate. It is thus valid to stipulate equality in the profit or to give preference. According to what ‘Abdurrazzaq narrated in Al-Jami’, ‘Ali (ra) said: ‘The profit is according to what they stipulated.’ With regard to losses in the ‘Inan company, it is according to the capital share only. If their shares are of equal value then the loss between them is divided equally, and if the capital is divided in thirds then the loss is divided in thirds. If they stipulated other than that, no value will be given to their stipulations. The rule on loss is then executed without regard to their stipulations, by dividing the loss based upon the ratio of their capital shares. This is because the body does not lose property; rather it loses the spent effort only. The loss is thus carried on the capital and it is distributed according to the shares of the partners. This is because a company is a form of representation (Wakala). The rule is that the deputy is not held responsible for the loss but the loss is carried upon the property of the deputising person. Abdurrazzaq narrated in Al-Jami’ from ‘Ali (ra): “The loss (Al-Wadhi’a) is upon the capital and the profit is according to what they stipulated.”