12.5 声望之人的同伴——Wujooh
12.5 The Company of Reputation Faces - Wujooh
这种合伙是由两方的身份与第三方的财产结合而成的:即一人将其财产交给两位或更多的人作为穆达拉巴(Mudharaba,委托经营),于是两位穆达拉布(mudharib,经营者)以他人的财产共同分享利润。他们可以约定将利润三等分,每位穆达拉布得三分之一,财产所有者也得三分之一。他们也可以约定将利润四等分,其中财产所有者得四分之一,一位穆达拉布得四分之一,另一位得二分之一。他们还可以约定其他条件,因此两位经营者之间可能存在利润的优先分配份额。两人享有利润优先份额的依据,是其中一人或两人的声誉(Wajaha),无论这种声誉来自其工作的职业,还是来自其在处置和管理方面的技能,尽管他们对财产的处置权是相同的。因此,这种合伙不同于穆达拉巴合伙,尽管实际上它最终仍归于穆达拉巴。
This company is an association of two bodies with the property of a third, namely a person gives his property to two persons or more as a Mudharaba, so the two mudharibs are partners in the profit through the property of another person. They may agree to divide the profit in thirds, to each mudharib a third and to the owner a third. They may also agree to divide it in fourths, where the property takes a fourth, one of the mudharibs takes a fourth and the other takes a half. Or they may agree on conditions other than these so that it is possible that there are preferential shares of the profit between the two workers. Their claim to preferential shares of profit is based on the reputation (Wajaha) of one or of both of them, whether in regard of their profession in work or of their skills in disposal and management, despite the fact that the right of disposal they have in the property is equal. This company is therefore different from the company of Mudharaba, although in reality it reverts to Mudharaba.
在合伙经营的种类中,有一种叫做"信用合伙"(Wujooh):两人或多人联合购买货物,依靠商人对他们的信任,以及基于这种信任而建立的声誉,他们并没有各自的资本。他们约定所购买的货物为他们共同拥有,按二分之一、三分之一、四分之一或类似的份额分配,然后出售这些货物。所获得的利润,依照他们约定的比例(二分之一、三分之一、四分之一或其他任何约定的比例)在他们之间分配,而不以先前约定的所有权份额为依据。然而,亏损则按照他们在所购货物中的份额比例来承担,因为这些份额代表着他们的财产,而不是依照他们对亏损的任何约定,也不是依照他们的利润分配比例,无论利润是否按照他们各自购买的价值来分配,或以其他方式分配。
Among the companies of Wujooh is when two or more persons associate in what they buy using the trust of merchants in them, and the reputation that is based on this trust, without having property. They would agree that the property they bought is owned by them in halves or thirds or fourths or the like, and they sell that property. What they gain of profit is divided between them in halves, thirds or fourths or whatever else they agree, and not based on the previous agreement of the share of ownership. However, the loss is in proportion of their shares of the purchased goods, because these shares represent their property and not according to what they may agree about the loss, nor according to their share of the profit, whether the profit was divided between them according to the value of their purchases or otherwise.
因此,两种形式的Wujooh合伙(无本合伙)是被允许的。这是因为,如果合伙人以他人的财产进行合伙,那么这就类似于Mudharaba(穆达拉巴,即委托经营合伙),这一点已为圣训和伊斯兰教法学界的公议(Ijma')所证实。如果他们合伙的是通过声誉以及商人对他们的信任而从他人财产中获取的东西,即凭借这些购买货物,那么这就类似于Abdan合伙(体力合伙),这同样有圣训为证。因此,Wujooh合伙既有圣训为据,也有公议为证。
Thus the company of the Wujooh with its two forms is allowed. This is because if the partners associated with the property of another person it is like the Mudharaba company, which is confirmed by the Sunnah and Ijma’a. If, however they associated with what they take from the property of another person, by buying goods through their reputation and the trust of the merchants in them, then it is like the company of Abdan, which is also confirmed by the Sunnah. The company of Wujooh is thus confirmed by the Sunnah and Ijma’a.
然而,有必要明确此处所说的"信用"是什么意思。在贸易和合伙等事务中提到信用时,指的是支付方面的信用,即财务信用,而非名望或声誉。因此,一个人可能是知名人士,却不被信任会付款,那么他就没有财务信用,在贸易和合伙事务上也就不被信任。他可能是部长、富人或大商人,但如果不被信任会付款,他便没有财务信用,在任何事情上也都不被信任。因此,他不能在市场上购买任何货物而不立即付款。反之,一个人可能是贫穷的,但如果商人们信任他会偿还债务,他就可以在不立即付款的情况下购买货物。在Wujooh合伙中,信用因此侧重于支付,而非声望。有些合伙企业中的情况是,政府的一位部长被纳入企业成为成员,并被分配一定比例的利润,而他既不出资,也不参与任何工作。他之所以被列为合伙人,是因为他在社会上的地位,以便促进企业的业务往来。这不被视为Wujooh合伙企业,伊斯兰对合伙的定义也不适用于此。这种合伙是不允许的,这样的人不是合伙人,他也不得从这类企业中取得任何东西。
However, it is necessary to know what is meant by trust in this regard. When trust is mentioned in the matters of trading and company matters and the like, it is meant to be the trust in payment, which is the financial trust, not notability nor esteem. Therefore, a person may be a notable person yet He is not trusted to pay, so there is no financial trust in Him and thus there is no trust in Him in the subject of trading and partnership. He could be a minister, a rich man or a great merchant, but if He is not trusted to pay, there is no financial trust in Him nor is He trusted in anything. Therefore, He cannot buy any goods from the market without paying its price. Yet could be a poor person, but if the merchants trust Him to pay his debts, He can buy goods without paying their price immediately. In the company of Wujooh, the trust is thus focused on payment not on notability. What occurs in some companies is that a minister of the government is included as a member in the company and assigned a certain share of the profit, while He contributes no property nor participates with any effort. He is associated as a partner due to his standing in society so as to facilitate the dealings of the company. This is not considered as a wujooh company nor does the definition of a company in Islam apply to it. This type of partnership is not allowed and such a person is not a partner and He is not allowed to take anything from such a company.
在沙特阿拉伯和科威特等一些国家,非沙特人或非科威特人无法获得经商或工作的营业执照,于是他们会找一位沙特人或科威特人作为合伙人,并给他一部分利润。而这位沙特人或科威特人既没有向公司投入任何财产,也没有投入自己的劳力,他之所以被视为合伙人,只是因为营业执照是以他的名义颁发的,他因此而获得一部分利润。这种公司既不属于“信用合伙”(wujooh)的类型,伊斯兰教法也不允许这种做法。这样的沙特人或科威特人并不是真正的合伙人,他从公司中拿取任何财物都是不合法的(haram),因为他不符合伊斯兰教法对合伙人所要求的条件。这些条件包括以财产出资、以劳力出资,或以对支付的信任出资,使他通过所获得的商品而实际参与经营。
What happens in some countries like Saudi Arabia and Kuwait is that the non-Saudi or the non-Kuwaiti person is not allowed to have a license for trading or working so He includes a Saudi in Saudi Arabia or a Kuwaiti in Kuwait as a partner. He assigns to Him a share of the profit, while the Saudi or Kuwaiti person does not contribute any property or his body to the company, rather He is considered a partner because the licence is issued in his name and He is given a share in the profit in return for this. This type of company is also not considered of the company of wujooh, nor is it allowed by Shar’a. Such a Saudi or Kuwaiti is not considered a partner and it is not Halal for Him to take anything from the company, because He does not fulfil the conditions which the Shar’a requires in the partner in order to become a legal partner. These conditions include associating in the property or by his body or by the trust in payment, so that He works with the goods He takes through this trust.