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.