12.4 劳力与资本的合伙——穆达拉巴(Mudharaba)
12.4 The Company of Body and Capital - Mudharaba
这被称为"借贷"(Qiradh),是出资方与劳动者之间的一种合伙,即以财产参与合作。它指一方将其财产交付给另一方,让其为己经营贸易,所获利润依双方约定的比例分配。 在穆达拉巴(Mudharaba)中,亏损不取决于合伙人的约定,而取决于伊斯兰教法(Shar'a)的规定。教法规定,亏损仅由财产承担,不涉及劳动者本人。即便出资方与穆达拉布(Mudharib)约定亏损也由双方分担,利润仍按约定在双方之间分配,而亏损只落在财产上。这是因为该合伙类似于代理(Wikala),而代理人(Wakeel)不承担担保责任,亏损只由委托人(Muwakkil)承担。这一结论依据的是阿卜杜·拉兹克在《汇编》(Al-Jam'i)中所传述的圣门弟子阿里(愿安拉喜悦他)的话:"亏损(Al-Wadhi'a)由财产承担,利润依双方约定分配。" 然而,劳动者本身并不损失财产,他所损失的只是其付出的劳力,而亏损仍由财产承担。 穆达拉巴在财产交付给劳动者('Amil)并赋予其自由处置之权之前不算有效,因为穆达拉巴要求将财产交付给穆达拉布。在穆达拉巴中,劳动者的分成必须明确,用于该契约的资本也必须是确定的数额。若出资方约定与穆达拉布共同经营,这一约定也是无效的,因为他无权代表合伙处置属于合伙的财产。处置与经营的权利应归于穆达拉布,他对财产拥有完全的支配权。这是因为该合伙契约是在穆达拉布的人身与合伙人的财产之上缔结的。 它并不是针对财产所有者的身体而言的所有者就像公司的外人一样,无权处置属于公司的任何东西。然而,穆达礼卜(Mudharib)的处置权仅限于财产所有者所允许的范围。他不得违背所有者的意愿,因为他的处置是基于许可进行的。如果所有者允许他只经营羊毛,或禁止他通过海路运输货物,所有者便有权在这些事项上对他加以限制。但这并不意味着财产所有者在公司中拥有处置权,而是说穆达礼卜的行为受到财产所有者所规定范围的约束。尽管如此,公司中的处置权仅归属于劳动者(穆达礼卜),财产所有者并无处置权。
This is called loaning (Qiradh), and it is the partnership of a body with property. It means that one pays his property to another person so as to trade with it for Him and the resulting profit is divided amongst them according to what they stipulated. The loss in the Mudharaba is not subject to the agreement of the partners but rather to that which came in the Shar’a. This loss is defined by Shar’a to be only on the property, none of it is upon the body (Mudharib). Even if the capital partner and the mudharib were to agree that the profit and loss is divided among them, the profit would be between them while the loss is only on the property. This is because the company is similar to representation (Wikala) and the agent (Wakeel) does not guarantee. The loss is upon the principal (Muwakkil) only. This is due to what ‘Abdurraziq narrated in Al-Jam’i from ‘Ali (ra): “The loss (Al-Wadhi’a) is on the property and the profit is according to what they stipulated.” The body however does not lose property, it loses what it spent of effort only and the loss remains on the property. Mudharaba would not be valid until the property is given to the worker (‘Amil) and He is given a free hand over it, because Mudharaba requires handing over the property to the Mudharib. In Mudharaba, the share of the worker must be defined and the property used in the Mudharaba contract must be of a defined amount. It is invalid for the owner of the property to work with the Mudharib, even if He stipulated to do so. This is because He has no right to dispose of the property that belongs to the company, on the company’s behalf. It is the mudharib who disposes and works, and He has full control over the property. This is because the contract of the company was concluded on the body of the Mudharib, and the property of the partner. It is not concluded on the body of the owner of the property, who is like a foreigner to the company and who does not have the right to dispose of anything which belongs to the company. However, the Mudharib is restricted in his disposal to that with which the owner of the property permitted. He is not allowed to disagree with Him because He disposes by permission. If He permitted Him to trade with wool only or He prevented Him from shipping the goods by sea, the owner has this right to restrict Him in these matters. However, this does not mean that the owner of the property disposes in the company. Rather it means that the Mudharib is restricted within the limits defined by the owner of the property. Despite this, the disposal in the company is confined to the worker (Mudharib) only, and the owner of property has no right of disposal.
穆达拉巴(Mudharaba)的一种形式是:两人的财产与其中一人的劳动相结合而成的合伙。因此,若两人共有三千件某物,其中一人占两千,另一人占一千,而两千的所有者允许另一人处置这笔资本,利润双方对半分配,这种合伙便是有效的。这名劳动者即是一千件物品的所有者,作为两千所有者的穆达拉布(Mudharib,即经营者),同时也是其合伙人。同样,穆达拉巴也可以是两人的资本与第三人的劳动相结合而成的合伙。以上皆为穆达拉巴的各种形式。
One form of Mudharaba is where two properties (of two persons) enter into partnership with the body of one of them. So if two persons had between them three thousand of something, one of them having two thousand and the other one thousand, and the owner of the two thousand permitted the other to dispose of the capital so that the profit is divided between them by halves, the company would be valid. The worker would be the owner of the one thousand of the items as a Mudharib to the owner of the two thousand, and would also be his partner. Similarly, Mudharaba could be through the partnership of the capital of two persons and the body of a third person. All these are forms of the Mudharaba.
穆萨拉巴(Mudharaba)因以下传述而被伊斯兰教法允许:“阿拔斯·本·阿卜杜勒-穆塔利ب曾以财产进行穆萨拉巴,并对穆达里布(Mudharib)附加某些条件。”此事传到了安拉的使者(愿主福安之)那里,他予以认可。圣门弟子一致同意穆萨拉巴是被允许的。伊本·艾布·舍白(Ibn Abu Sheeba)转述:从阿卜杜拉·本·哈米德,从其父,从其祖父那里,“欧麦尔·本·哈塔布把一名孤儿的财产交给他作穆萨拉巴,他用这笔钱经营并获得了利润,欧麦尔把盈余与他分享。”伊本·古达玛在《穆格尼》中转述:从马立克·本·阿拉·本·阿卜杜勒-拉哈曼,从其父,从其祖父那里,“奥斯曼借给他财产作穆达里布(卡拉德)。”还有传述称,伊本·马苏德和哈基姆·本·欣扎姆“两人曾进行卡里达(借贷合营)”。所有这些都发生在圣门弟子的知晓之下,没有任何关于他们反对这些做法或否认其效力的记载,这证实了圣门弟子对穆萨拉巴的一致同意。
Mudharaba is allowed by Shar’a due to the narration that “Al-’Abbas ibn ‘Abdul-Muttalib used to pay the property of the Mudharaba and put certain conditions on the Mudharib.” This (information) reached the Messenger of Allah (pbuh) and He consented to it. Ijma’a of the Sahaba was established that the Mudharaba is allowed. Ibn Abu Sheeba narrated from ‘Abdullah ibn Hameed from his father from his grandfather “that ‘Umar ibn Al-Khattab gave Him the property of an orphan as a Mudharaba so He worked with it and gained a profit, and ‘Umar divided the surplus with him.” Ibn Qudamah narrated in Al- Mughni from Malik ibn al-’Alaa ibn ‘Abdurrahman from his father from his grandfather that “‘Uthman loaned Him property as a Mudharib (Qaradh).” It was also narrated from ibn Mas’oud and Hakeem ibn Hizam that ‘the two of them entered into loan (Qaridha).’ All of this occurred with the knowledge of the Sahaba and none was reported to disagree with the proceedings or deny their validity, confirming their Ijma’a on the Mudharaba.