his partner’s loss. For if you were to say that the loss is to be apportioned according to their stipulation, while their capital contributions differ, that would entail making one of them bear the loss of the other’s capital. Profit, however, is something a person may earn in any case; thus, even if his share of the profit is less than the return generated by his own capital, there is no problem.
Therefore, profit is divided according to whatever they stipulate. It is permissible for each of them to contribute ten thousand, while the profit is apportioned three quarters to one of them. But if each has contributed ten thousand, the loss cannot be apportioned two thirds to one and one third to the other, because, as we have said, this would make one of them bear a loss against the other’s capital. This is not permissible, for it is inequity and injustice. Rather, loss is borne in proportion to the capital.
His statement, “If they include in it an exceptional gain or liability”: an exceptional gain includes, for example, rikāz (buried pre-Islamic treasure). Rikāz is a gain, but it is exceptional. A found item is likewise exceptional: when do you ever find one? And then, after finding it, when will you fail to find its owner? You may announce it, only for its owner to come forward, and thus gain nothing. These are exceptional gains. If they are included in a comprehensive partnership—for example, if they say, “Even whatever found property we discover and whatever rikāz we uncover is included in the partnership”—then the author says that the partnership is invalid, because they have included an exceptional gain in it.
His statement, “or a liability”: an exceptional liability includes, for example, an offense against another person. If someone harms another person unintentionally and becomes liable for compensation for the harm he caused, this liability rests upon the offender. But if they include it within the partnership, it is invalid, because such a liability may be so burdensome as to consume all the partnership’s capital. Thus, this condition is invalid. According to the relied-upon position in the school, it is invalidating, because it results in uncertainty regarding both profit and capital. Every condition that introduces uncertainty into the partnership’s profit is invalid.