12.6 谈判伙伴关系 - 穆法瓦达(Mufawadha)
12.6 Company of Negotiation - Mufawadha
这是两个合伙人共同分享前面提到的所有类型合伙形式的情况,即“Inan”、“Abdan”、“Mudharaba”和“Wujooh”合伙之间的结合。例如,某人将一些财产或资本交给两名工程师,这两名工程师合伙并投入各自的财产,以便建造房屋出售。两名工程师约定,所使用的财产要多于他们各自所拥有的,于是他们开始在无需立即付款的情况下赊购货物,这是基于商人对他们的信任。因此,两名工程师的合伙,凭借他们的身体与劳动,就是一种“Abdan”合伙。就其技艺以及用于经营的财产支付而言,它是一种“Inan”(股份均等)合伙。他们从他人处获取财产,这意味着它是一种“Mudharaba”合伙。由于他们基于商人对其的信任而购买的货物可以共享,这意味着它是一种“Wujooh”合伙。因此,这种合伙集合了伊斯兰教所允许的所有类型的合伙。它是有效的,因为这些合伙形式中的每一种单独来看都是被允许的,它们结合在一起同样有效。利润依照他们的约定分配。可以按两份财产的比例分配,也允许即使财产不同也平均分配,同样,即使财产相等,也允许约定优先分配。
This is where two partners share in all the types of companies mentioned before, like a combination between the companies of ‘Inan, Abdan, Mudharaba and Wujooh. For example a person may contribute some property or capital to two engineers in partnership with their properties so that they build houses to sell. The two engineers agree to work with property greater than that which they hold, so they start to take goods without paying for them immediately, based on the traders’ trust in them. Thus, the partnership of the two engineers together with their bodies is a company of bodies. With regard to their craft and paying for property with which they work, it is a company of ‘Inan (equal). The fact that they take property from other people means it is a company of Mudharaba. As they share in the goods which they buy based on the trust of the traders in them means it is a Wujooh company. This company has therefore combined all the types of companies allowed in Islam. It is valid because each type of these companies is allowed by itself and they are also valid together. The profit is according to their agreement. It is allowed to make it proportional to the two properties. It is also allowed to make it equal even if the properties are different. And it is allowed to make it preferential even if the properties are equal.
这种商业合伙(即“谈判合伙”)是允许的,因为伊斯兰教法的经文允许它。然而,一些教法学家提到了另一种谈判合伙,即两人合伙,彼此在财产、处置权和债务上完全平等,并且每个人都可以绝对地代表对方行事。这种合伙是绝对禁止的,没有任何伊斯兰教法经文可以作为其依据。至于他们引用的那段圣训:“如果你们谈判,就把谈判做好”,或者圣训:“谈判会更有福泽”,这两段圣训都没有被证实为可靠(沙希德)的,即便假设其含义是正确的也是如此。此外,这种合伙涉及未知的财产和未知的行为,仅此一点就足以使合伙无效。另外,他们的财产中还包括在某位继承人去世后分给他们的遗产,而其中一位合伙人可能是迪米(非穆斯林)。那么他怎能获得遗产的份额呢?再者,这种合伙也是不允许的,因为该合伙包含了对未知事物的委托代理,而这是不被允许的。所有这些都表明这种谈判合伙是无效的。
This type of company of negotiation is allowed, because the Shari’ah text allows it. Some jurisprudents have, however, mentioned other types of negotiation company, where two persons participate, such that they are equal in their property, their right of disposal and their debts and each of them can deputise for his colleague in absolute terms. This type of company is absolutely prohibited. There is no Shari’ah text that is a proof for it. As for the Hadith which they quote to say: ‘If you negotiate then improve the negotiation’ or the Hadith, ‘Negotiate as it is more blessing,’ neither of these two Hadith have proven to be valid (Sahih), even assuming that their meaning is correct. Moreover, this company is a partnership of unknown property and unknown action, which is enough by itself to make the company invalid. Additionally, included in their property is the inheritance which is given to them after the death of an inheriting person, and one of the partners could be a Dhimmi (non- Muslim). How then could He receive a share of the inheritance? Further, it is not allowed, because the company includes deputation, which is not allowed over unknown things. All this indicates the invalidity of this type of negotiation company.