or illness. Ibn al-Qāsim, however, construed the work as a guaranteed obligation binding on both workers, which does not lapse upon their deaths and remains chargeable against their property. They could not disagree over whom the worker had served gratuitously if the hiring agreement expressly specified whether the work was a guaranteed obligation or tied to the particular workers. They might, however, plausibly disagree over how to construe the agreement if this had not been specified. The worker’s labor is deemed gratuitous—on behalf of his partner where the obligation is guaranteed, or on behalf of the well’s owner where it is tied to the particular workers—only if there was no need to hire someone to perform it. This accords with their ruling concerning someone who harvests another person’s crop without his permission. And Allah grants success.

Section

As for partnerships based on mutual liability, Mālik did not permit them, because they involve neither capital nor a trade. It is as though each partner said to the other, “Assume liability on my behalf for half of whatever I purchase, in return for my assuming liability on your behalf for half of whatever you purchase.” This involves contractual uncertainty and risk. Abū Hanīfa held that credit partnerships are permissible and are constituted through agency, since whatever either partner purchases belongs partly to him and partly to his partner through agency. Such agency, on this view, validates the arrangement. This, however, is unsound. If someone said, “I appoint you as my agent to purchase a commodity for me, on condition that you receive the profit from the commodity I have purchased,” this would not be valid, because of the uncertainty on both sides. Such an arrangement is permissible in capital partnerships only because there is an underlying asset upon which the partnership is constituted: namely, the capital.

If they say, “Is it not permissible for two men to purchase a commodity jointly on credit, on condition that each guarantees the other’s liability for it? Their partnership in it is valid, and each guarantees what the other owes. If a partnership subject to a guarantee is permissible in this case, then partnerships based on mutual liability must also be permissible, since they entail a guarantee: whatever may validly be stipulated may also be made the intended object of the agreement.”

We reply: This does not follow. The distinction between the two cases is that, when two men purchase a commodity on credit on condition that each guarantees what the other owes, each knows the liability he has assumed on his partner’s behalf. They jointly own the item for whose price they have assumed liability, as in the case discussed in the second Book of Advance Sales concerning