12.1 伊斯兰教中的公司——合伙(Shirkah)
12.1 The Company in Islam - Partnership
合伙(Ash-Sharika)在语言上的意思是将两份或多份份额混合在一起,以至于彼此无法区分。在伊斯兰教法(Shar'a)中,合伙是两人或多人之间的一种契约,他们约定为了获取利润而共同从事经济活动。与所有伊斯兰契约一样,合伙契约需要要约与承诺同时存在。要约是指一方对另一方说:"我与你就某某事务建立合伙关系",另一方回答说:"我接受。"这些确切的词语并非必需,但其含义必须具备。要约与承诺之中必须有某种迹象表明,一方以口头或书面形式向另一方提出就某事建立合伙的主张,而另一方予以接受。因此,仅仅就合伙达成一致并不构成契约。约定以钱财或财产作为合伙的代价,同样不被视为契约。相反,契约必须包含在某事物上建立合伙的概念。 伊斯兰教中合伙契约有效的条件要求,所订立合伙的事项必须是一项处置权,并且该处置权(合伙契约即是就此而订立)适合委托代理(Wakala),从而使通过处置所获得的收益由两位合伙人分享。
Company (Ash-Sharika) linguistically means mixing two or more shares together such that neither can be distinguished from the other. Company in Shar’a is a contract between two or more persons, in which they agree to perform financial work with the intention of making profit. The contract of the company requires the existence of both offer and acceptance, as is the case with all Islamic contracts. An offer occurs when one party says to the other: ‘I entered into partnership with you in such and such’ and the other party replies by saying, ‘I accepted.’ These actual words are not necessary but the meaning is. There must occur in the offer and acceptance something that indicates that one of the parties addressed the other orally or in writing on the matter of partnership over something, and the other accepted. Therefore, an agreement on partnership only does not represent a contract. An agreement to pay money or property for partnership is also not considered a contract as well. Rather, the contract must include the concept of partnership in something. The condition of validity of the partnership contract in Islam requires that the contracted matter be a right of disposal and that this right of disposal, over which the company contract is concluded, is suitable for representation (Wakala) such that what is gained by the disposal is shared between the two partners.