is a legal category in its own right and a distinct, independent contract. The established legal principles require every contract that is invalid or of doubtful validity to be referred back to its own valid form, not to the valid form of another kind of contract, as with marriage, sales, and hiring. Just as an invalid sale or other contract is referred back to its own valid form rather than that of another contract, an invalid investment partnership must likewise be referred back to its own valid form.
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Invalid reward contracts and invalid irrigation partnerships are likewise subject to this disagreement. According to one view, they are governed by the rules of their own contractual types; according to another, by those of other contracts, without distinction. A further view makes distinctions between cases, as we have mentioned in the relevant places. This rests on the juristic preference in legal rulings discussed above.
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When the working partner is awarded the customary remuneration for comparable work, the well-known position in the school is that this remuneration is a personal liability of the capital provider, not a charge against the profits. Ibn Habīb held that it is a charge against the profits: if the funds yield no profit, the working partner receives no remuneration. This is a far-fetched view.
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If we hold that this remuneration is a personal liability of the capital provider, does the working partner have priority over the other creditors with respect to the profits? There is disagreement on this point. It is stated in Ibn al-Mawwāz’s book that he has no priority over the other creditors, and this is the apparent meaning of the passage in the Mudawwana. That passage has also been interpreted as referring to a case in which he had handed over the funds and relinquished possession of them; hence he was placed on an equal footing with the other creditors.
This turns on their disagreement over whether a pledge requires an express declaration to be valid. According to Ibn al-Qāsim’s position in the Mudawwana, it does. This is clear from his statement in its Book of Pledges that the pledgee has no priority over the other creditors with respect to the pledged property for what he has spent on it, even if the pledgor tells him to spend on it on the understanding that his expenditure is secured by the pledge, until he says