12.3 身体类功课——Al-Abdan
12.3 The Companies of Bodies - Al-Abdan
这是一种两人或多人仅以各自的劳力参与、而不出资本的合伙。他们分享因其劳动(无论是脑力劳动还是体力劳动)所获得的收益。此类劳动的例子包括:工匠们运用各自的手艺共同工作,并将所得利润在彼此之间分配,如工程师、医生、渔夫、搬运工、木匠、司机等。合伙人不必是同一行业的人,也不必都是工匠。允许不同行业的工匠为了获取合法(Halal)的利润而合伙。他们的合伙是有效的(Sahih),就如同他们属于同一行业一样。合伙人在公司中可以承担特定的职责,例如一人负责管理公司,另一人负责收款,第三人负责用手工作。这意味着,工厂里的工人可以联合合伙,无论他们是否都懂得生产工艺。他们也可以与其他工匠、劳动者、职员和保安合作,他们都可以成为工厂的合伙人。然而,前提是他们为获取利润而合作的工作必须是合法的(Halal)。如果工作的性质是非法的(Haram),那么为从事此类工作而成立公司是被禁止的。
This is a company in which two or more persons participate by their bodies only, without their capital. They share in that which they gain by their labour of whether an intellectual or physical nature. Examples of such labours are by craftsmen who share in work using their craft and divide that which they profit amongst themselves such as engineers, doctors, fishermen, porters, carpenters, car drivers and the like. It is not necessary that the partners be of the same craft, nor that they are all craftsmen. It is allowed that craftsmen of different crafts associate in an allowable (Halal) form of profit. Their partnership is valid (Sahih) just as if they were of the same craft. It is acceptable for the partners to perform a particular role in the company, so that one administers the company, another receives the money and the third works by his hands. This means that it is allowed for labourers in a factory to enter into partnership together, whether or not all of them understand the process of manufacturing. They can associate with other craftsmen, labourers, clerks and guards, and they can all become partners in the factory. However, it is stipulated that the work they associate together in for the purpose of making a profit be Halal. If the type of work is Haram, then to form a company undertaking such work is forbidden.
在身体合伙(شركة الأبدان)中,利润按合伙人之间的约定进行分配,可以平均分配,也可以有所偏重。因为利润正是由其工作产生的,既然合伙人之间在工作上可以有所差异,那么他们在由工作所得的利润上有所差异也是允许的。 每位合伙人都有权向雇主收取其全部报酬,并有权向潜在买家索要其所制造货物的价款。同样,雇用他们的人或向他们购买货物的人,有权将全部报酬或货物的全部价款支付给他们中的任何一人,只要他向其中任何一人付清,便可免除责任。 即使只有一位合伙人亲自工作,收入仍然要在所有合伙人之间分配,因为工作是由他们所有人共同承担保证的,并且他们共同承担工作的责任。换言之,报酬理应由他们共享;报酬属于他们所有人,因为责任也由他们所有人共同承担。 任何一位合伙人都不得代表自己委派他人作为公司的合伙人,也不得雇用他人代表自己从事工作并以合伙人的身份进行。按照此类公司的合同规定,他本人必须亲自直接处理工作。 然而,每位合伙人都可以雇用员工,这种雇用以公司的名义进行、为公司的利益而进行,即使只有一位合伙人处理了雇用事宜。该员工则不是该合伙人个人的代理人、代表或雇员。每位合伙人的处置行为都代表公司进行,他们每个人都受其合伙人所接受的工作约束。
The profit in the company of bodies is distributed according to the agreement of the partners, whether equally or preferentially. For it is that which produced the profit and since it is allowed for the partners to differ in work, it is allowed that they differ in profit which is derived from the work. Each of the partners has the right to collect all of their wages from their employer, and to demand the price of the goods they manufactured from prospective purchasers. Similarly, the one who employed them or the one who bought goods from them has the right to pay all wages or to pay the whole price of the goods to anyone of them. He will be cleared of responsibility once He has made the payment to any one of them. Even if only one of the partners worked, the income is still divided amongst all of them, because the work is guaranteed by all of them together, and through their joint responsibility for the work. The wage in other words, deserves to be shared. In other words, the wage is for all of them as the responsibility is carried by all of them. None of them is allowed to deputise on his behalf a person as partner in the company or to employ a person to do the work on his behalf as a partner. He himself must be the one who handles the work directly as the contract stipulates this in this type of company. However, each partner is allowed to hire employees and such hiring would be by the company and for the company, even if only one of the partners handled the employment. The employee would then not be that partner’s own deputy, agent or employee. The disposal of each partner would be on behalf of the company, and every one of them is bound by the work accepted by his partner.
这种合伙形式之所以被允许,是依据艾布·达乌德和阿塞拉姆所传的圣训,他们引述艾布·欧拜代,其父系传自阿卜杜拉·本·麦斯欧德,他说:"在白德尔战役中,我与阿玛尔·本·亚西尔和萨阿德·本·艾布·瓦嘎ース共享我们所获得的一切战利品。萨阿德带来了两名俘虏,而阿玛尔和我一无所获。"安拉的使者ﷺ同意了他们两人的这一安排。艾哈迈德·本·罕百勒说:"安拉的使者ﷺ让他们合伙。"这段圣训明确证明,一群圣门弟子的身体(即人力)可以联合起来从事一项行动,即与敌人作战,并且如果赢得战斗,便在他们之间分配所获得的战利品。至于战利品的规定与这种合伙相左,这与本圣训无关,因为战利品的规定是在白德尔战役之后才降示的。这种人力合伙发生时,尚无战利品的规定。此外,战役之后降示的战利品规定,并未废止此前已存在的合伙,而是阐明了贡献者的份额,人力合伙的规定依然如本圣训所确立的那样有效。
This form of company is allowed due to what Abu Dawud and al- Athram narrated from Abu ‘Ubaydah from his father, ‘Abdullah ibn Mas’ud, who said: “I shared with ‘Ammar ibn Yasir and Sa’ad ibn Abu Waqqas in whatever we gained at the day of Badr. Sa’ad came with two captives, while ‘Ammar and I brought nothing” and the Messenger of Allah (pbuh) consented to this to both of them. Ahmad ibn Hanbal said: “The Messenger of Allah (pbuh) associated them together.” This Hadith is an explicit evidence about the partnership of bodies of a group of the Sahabah to perform an action, which was fighting against the enemies, and to divide amongst themselves that which they gained in terms of booty if they won the battle. With respect to the rule of the booties being in disagreement with this partnership, this is not relevant to this Hadith because the rule of the booties was revealed after the battle of Badr. When this company of bodies occurred there was not yet any rule of booties. In addition, the rule of booties which was revealed after the battle did not abrogate the company which occurred before. Rather it clarified the shares of the benefactors, and the rule of the company of bodies remains as established by this Hadith.