4.5 穆達拉巴(Mudharaba)
4.5 Mudharaba
Mudharaba(穆扎拉巴,即合伙经营)是指两人(或更多人)共同参与贸易,其中资本来自其中一方,而工作由另一方承担。也就是说,一人的劳力与另一人的财产相结合,共同合作。这意味着工作将由其中一方完成,另一方提供财产。双方约定利润的某一固定份额。例如,一方提供一千英镑,另一方用这笔钱做生意,利润由两人分配。 这笔钱必须交给劳力方,即出劳者,并赋予他对这笔钱的自主处理权,因为穆扎拉巴要求将财产交付给出劳方(Mudharib)。出劳方有权向财产所有者提出条件,即他可以获得利润的三分之一、一半,或双方共同商定的任何固定利润份额。这是因为出劳方有权因其劳动而获得利润。因此,双方可以约定出劳方的利润份额,无论多少,都是允许的。 所以,穆扎拉巴是一种合法的获取所有权的劳动方式。出劳方因此拥有这笔财产,并依照约定,凭借其劳动从穆扎拉巴中获取利润。
Mudharaba is where two persons (or more) participate in trading, where the capital comes from one of them and the work from the other. That is, the body of one person enters into partnership with the property of another person. This means that the work will be carried out by one of them and the other will provide the property. The two partners agree on a certain share of the profit. An example of this is when one of them provides one thousand pounds and the other person works with it, and the profit is divided between them. The money must be handed over to the body partner, who is given a free hand over the money, because Mudharaba requires the handing over of the property to the body partner (Mudharib). The body partner has the right to stipulate upon the property owner that He has a third, or half of the profit, or whatever they may agree on together as a defined portion of the profit. This is because the body partner (Mudharib) is entitled to the profit due to his work. It is thus allowed for the partners to agree on the profit of the Mudharib whether it is little or great. So Mudharaba is a kind of work which is a legal means of ownership. The Mudharib thus possesses the property, which He profited from via Mudharaba due to his work in accordance with what was agreed.
Mudharaba是一种合伙(公司),因为它是人力与财产的合伙。合伙是伊斯兰教法所允许的交易之一。艾布·胡莱赖(愿安拉喜悦他)传述:安拉的使者ﷺ说:“安拉说:‘两位合伙人之中,只要其中一方不背叛另一方,我便是第三者;若其中一方背叛了另一方,我便从他们之间退出。’” 先知ﷺ又说:“安拉的手在两位合伙人之上,只要他们不互相背叛。” 阿拔斯·本·阿卜杜勒-穆塔利ब(愿安拉喜悦他)传述:他交出财产作为Mudharaba时,习惯于约定让Mudharib不得携带此财产走海路,不得下山谷,也不得经营有生命的牲畜交易;否则他就须为所发生的损失承担担保责任。先知ﷺ得知此事后,予以认可。 众圣门弟子(愿安拉喜悦他们)一致同意Mudharaba是允许的。欧麦尔·本·哈塔卜(愿安拉喜悦他)曾将孤儿的财产交付他人进行Mudharaba。奥斯曼·本·阿凡(愿安拉喜悦他)也曾将一笔财产交给某人进行Mudharaba。 因此,Mudharib通过经营他人的财产为自己获得了收益。Mudharib的Mudharaba经营属于劳动,是有效的所有权取得方式之一。而对于财产的所有者而言,它并非取得所有权的方式,而是对所有权进行投资的方式。
Mudharaba is a kind of company, because it is a partnership of a body and property. The company is one of the transactions which the Shar’a has allowed. Abu Hurairah (ra) said that the Messenger of Allah (pbuh) said: “Allah says: ‘I am the third of the two partners unless one of them betrays his companion, so if one of them betrays his companion I withdraw from them.’” The Prophet (pbuh) (pbuh) said: “The hand of Allah is on the two partners unless they betray each other.” Al-Abbas ibn Abdul- Muttalib (ra) narrated that, when He handed a property as Mudharaba, He used to stipulate on the Mudharib not to travel with it by the sea, not to descend a valley nor to trade with live things, otherwise He would have to guarantee losses incurred. The Prophet (pbuh) of Allah (pbuh) became aware of that and He approved of it. The companions (ra) have agreed unanimously that Mudharaba is allowed. ’Umar ibn Al Khattab (ra) used to hand over the orphans’ property for Mudharaba. Uthman ibn Affan (ra) handed some property to a man as Mudharaba. So the Mudharib gains a property for himself by working with the property of another person. The Mudharaba by the Mudharib is thus work and one of the valid means of ownership. However for the owner of the property it is not a means of ownership, rather it is a means of investing the ownership.