two agents; those who disallow it view the arrangement as an additional portion the worker has appropriated for himself at the investor’s expense.
If, however, the worker stipulates that his own slave take part, al-Thawrī holds that the stipulation is invalid. The slave is then entitled only to the customary wage for whatever work he performs, for the worker’s share would otherwise become unknown.
Chapter Three
Rulings Governing Qirāḍ
These rulings are of two kinds: those that concern a valid qirāḍ and those that concern a defective one. As for a valid qirāḍ, some rulings follow necessarily from the contract itself—a point over which the jurists have differed—while others address contingencies that arise independently of the contract’s original effect, such as misconduct, dispute, and the like. We shall mention of these matters what is well known among the jurists of the various regions.
We begin with the consequences intrinsic to the contract:
The scholars unanimously agree that irrevocability is not one of them; either party may annul the contract so long as the worker has not begun trading. They differ, however, once he has commenced.
Mālik holds that the contract then becomes binding and that it passes to heirs. If the worker dies leaving trustworthy sons, they continue the qirāḍ just as their father did; if they are not trustworthy, they must appoint someone who is. Al-Shāfiʿī and Abū Ḥanīfah, by contrast, maintain that either party may rescind the agreement whenever he wishes, and that it does not pass to heirs.
Mālik deemed it binding after trading begins because rescission would cause harm, and he regarded it as an inheritable contract. The second group likened the commencement of trading to the period before it.
There is no dispute that the worker takes his share of the profit only after the entire principal has been realized, and that if a loss occurs which is later followed by profit, the profit first makes good the loss.
They did disagree about a man who entrusts capital to another, part of which is destroyed before any trading, after which the agent trades and makes a profit and wishes to treat the remaining sum as the principal. May he do so?
Mālik and the majority say: if the investor believes him—or if a man entrusts another with capital, part of it is lost before trading, the agent informs him, and he believes him—then says, “Let what remains continue as a qirāḍ on the former terms,” that is not permissible until they settle accounts, the investor receives his principal, and the first qirāḍ is terminated.
Ibn Ḥabīb, one of Mālik’s companions, held that the statement is binding and the remainder becomes a qirāḍ. Although this question belongs to unforeseen contingencies, we mention it here because it affects the time at which distribution becomes due and thus forms part of the contract’s rulings.
They also differed over whether the worker’s maintenance comes out of the capital entrusted to him. There are three opinions:
• In the most widely transmitted view of al-Shāfiʿī, he is entitled to no maintenance at all unless the investor permits it.
• Others say that he is entitled to his maintenance,