5.2 工作的类型
5.2 The Type of Work
允许签订合同承担每一种合法(Halal)的工作。例如受雇从事贸易、农业、工业(制造业)、服务业和代理工作。在司法事务中,可以受雇传达原告或被告的答辩、收集证据并将其交给法官、主张权利或调解人与人之间的纠纷。此外,还可以受雇钻井、建造、驾驶汽车和飞机、印刷书籍、抄写《古兰经》(Mushaf),以及运送乘客,以及其他合法的工作。
It is permissible to be contracted to undertake every lawful (Halal) form of work. Examples are hiring for the purpose of trading, farming, industry (manufacturing), serving and deputation. In judicial matters one may be hired to convey the response of a claimant or defendant, collect the evidence and deliver it to the judge, claim rights or settle disputes among people. Also one can be hired for drilling wells, building, driving cars and aeroplanes, printing books, copying the Mushaf, and carrying passengers, among other lawful works.
雇佣可以是针对特定的工作,也可以是针对某种特定性质的工作。如果雇佣是为某位特定雇员签订的特定工作合同,例如哈立德雇佣穆罕默德缝制某件特定的衣服,或驾驶某辆特定的汽车,那么穆罕默德应当亲自完成这项工作,他绝对不得授权他人代为完成。如果穆罕默德生病或丧失了工作能力,也不允许他人代替他去做,因为雇员已经被指定。如果那件特定的衣服被毁坏,或指定的汽车发生了故障,穆罕默德也没有义务去做这两者之外的工作,因为工作的种类已经被明确界定。
Hiring could be for a specific job, or for doing work of a specific description. If hiring is contracted for a particular job for a certain employee, for example if Khalid hired Mohammed to sew a particular dress or to drive a particular car, then Mohammed should do the work and He is not allowed at all to authorise another person to do the job on his behalf. If Mohammed became sick or was incapable of doing the work, no other person is allowed to do it instead of Him because the employee had been designated. If the particular dress was destroyed or the specified car had broken down, Mohammed would not be obliged to work on other than those two, because the type of work had been defined.
然而,如果雇佣合同所约定的是某种被描述于其责任范围之内的事情、某种被描述的雇员类型,或某项特定的工作,则其规定有所不同。在这些情况下,雇员可以亲自完成工作,也可以委派他人代替自己完成。如果他生病或无法完成工作,则有义务委派他人代替自己做这项工作。只要合同中描述了这类工作,他也有义务驾驶雇主提供的任何车辆或缝制任何服装。这是因为合同所界定的不是某项具体的工作本身,而是工作的类型;因此,只要属于合同所规定的同一类型,对任何事物所做的工作都具有约束力。在这种情况下,其界定是通过描述而非具体点名,从而将执行该类型中任何工作的选择权交给雇员。
However, if hiring was contracted over something which is described in one’s responsibility, or a described type of employee, or a certain job, the rule is different. In these cases, the employee can do the work and He is allowed to delegate a person to do the job on his behalf. If He becomes sick or is unable to do the work, He is bound to delegate a person to do the job instead of him. He is also under duty to drive any car or sew any dress provided by the employer as long the contract describes such work. This is because the definition was not for the work itself, but is for its type, so any work on anything is binding as long as it is of the same type as the contract specified. In this case its definition would be by description and not by naming it specifically, leaving the choice for the employee to perform anything of the contracted type.
界定工作类型,包括描述将要从事工作的工人,以便显示其工作的性质,例如工程师。其描述也包括所要完成的工作。这说明了其中所付出劳动的性质,例如钻井的例子。通过这种描述来界定工作,与通过直接命名来界定工作相似。因此,既可以通过描述工作来界定,也可以通过明确命名来界定,两者皆可接受。即使工作尚未呈现、看不见摸不着,只要它是其责任所在,便已足够,仿佛它就在眼前、触手可及。因此,正如可以雇佣一位特定、明确指名的工程师,也可以雇佣一位符合某种描述的工程师。同样,雇佣裁缝缝制某一件特定的衬衫是允许的,雇佣他人缝制符合某种描述的衬衫也是允许的。
Defining the type of work includes describing the worker who will do the job so as to demonstrate the nature of his effort, such as an engineer. Its description also includes the work, which has to be performed. This explains the nature of the effort spent in it, such as in the example of drilling a well. Defining the work by such description is similar to defining it by naming it. It is, therefore, acceptable to define the work by describing it or to define it by specifically naming it. It is enough to be due in one’s responsibility, though unseen, as if it is present and tangible. So, just as it is allowed to hire a named engineer, specifically defined, it is allowed to hire an engineer of a certain description. Similarly it is permissible to hire a tailor to sew a specific shirt and it is also allowed to hire a person to sew a shirt of a certain description.
如果一个人接受了某项工作,他可以将其交给另一个人,以较低的报酬完成,从而从差额中获利。这是因为他有权以任何报酬雇用他人来完成该工作。 裁缝、木匠等工匠雇用工人为其工作,以及承包商雇用人员完成他们自己承包的工作,这些行为都是被允许的,无论他们向雇员支付多少报酬。无论是为完成特定工作而雇用,还是为某一段时间而雇用,这仍然属于雇佣。所有这类工人都属于私人劳动,在伊斯兰教法中是合法的。
If a person accepted to do some work, He is allowed to give it to another person with a lesser wage and thus profit by the difference. This is because He is allowed to hire others to do the work for any wage.What business people, like tailors and carpenters, do in terms of hiring workers to work for them, and what contractors do in terms of hiring people to do work they themselves have been contracted to perform, are all allowed, regardless of what they pay their employees. This is still hiring whether for performing specific works or for a certain period. All such workers are a type of private labour, which is lawful in Shar’a.
对于一个人雇佣工人,并以要取得他们工资的一部分为条件,或者自己充当他们的监工以换取他们工资的一部分,这是不允许的。因为这样他就侵占了本应属于他们的部分工资。艾卜·达伍德从艾卜·赛义德·胡德里传述:先知ﷺ说:“当心分成(私扣)。”我们问:“安拉的使者啊,什么是分成?”他说:“是人们之间约定好的东西,却被减去了其中的一部分。”在阿塔的另一则传述中,先知ﷺ说:“某人管理一群人,却从他们的份额中拿取。”因此,如果一个承包商与某人约定,为他带来一百名工人,每人每天一第纳尔,而他却给每个人不到一第纳尔,这是不允许的。约定的金额被视为每个人确定的工资。如果他从中扣除,就是侵犯了他们的权利。然而,如果他只是承包带来一百名工人,而没有提及他们的工资,那么此人可以给他们少于约定的金额,因为他并没有减少他们应得的既定工资。
For a person to hire workers on condition that He takes a part of their wages, or appoints himself as a supervisor over them in return for a part of their wages, is not allowed. This is because He would have then usurped a part of the wages assigned to them. Abu Dawud narrated from Abu S’aid al-Khudri that the Prophet (pbuh) (pbuh) said: “Beware of the apportionment. “We said: ‘O Messenger of Allah, what is the apportionment?’ He said: “A thing agreed among people, but a part is reduced of it.’” In another narration from Ataa, the Prophet (pbuh) (pbuh) said: “That a person is in control over a group of people so He takes from their shares.” So if a contractor made an agreement with a person so as to bring Him one hundred workers each for one dinar a day, and He gave each of them less than one dinar, this would not be allowed. The amount which He contracted for, is considered a defined wage for every one of them. If He deducted from it He would have taken from their rights. If however, He was contracted to bring one hundred workers without mentioning their wages, then the person is allowed to give them less than the contracted amount because He would have not reduced their assigned wages.
也有一个条件是,工作的种类必须界定到足以被知晓的程度,使雇佣建立在已知的事物之上。这是因为为未知的工作而雇佣是无效的。因此,如果一个人对工人说,他被雇来把某些特定的货箱运到埃及,报酬为十第纳尔,那么这项雇佣是有效(合法)的。如果他说是按每吨一第纳尔的报酬雇来运送,或者说是雇来运送,每吨一第纳尔,超出部分另行计算,这同样有效,只要他所用的措辞表明他应当把它们全部运走。但如果他说运送,每吨一第纳尔,多出的部分按比例计算,也就是对其余货物中额外运送的部分另行计算,这就无效,因为所订立的合同内容中有一部分是未知的。然而,如果他要求对每一吨按一第纳尔计价,这则是有效的,正如他雇人为自己打水,每一米按一便士计算,这是允许的。因此,雇佣的条件是所涉及的事物必须是已知的。若其中掺杂了不确定性,雇佣便归于无效。
It is also a condition to define the type of work in such a manner that it becomes known, so that hiring is concluded over a known thing. This is because hiring for unknown work is invalid. So if a person told a worker that He had been hired to carry some particular boxes of goods to Egypt for ten dinars, then the hiring is valid (lawful). It is valid also if He said He had been hired to carry them for one dinar per ton, or if He had been hired to carry them, one ton for one dinar, and anything over that would be calculated. This will be valid as long as He used words that indicated that He should carry them all. But if He said to carry them, one ton for one dinar, and whatever is extra is to be calculated accordingly, meaning whatever extra was carried of the remaining ones, this is not valid, because some of the contracted matter is unknown. However, if He asked Him to carry every ton for one dinar, this is valid, just as if He had hired Him to draw for Him water, every metre for one pence, which is allowed. So it is a condition that hiring be about a known thing. If however ignorance is involved, the hiring becomes invalid.