Al-Shāfiʿī observes that, like qirāḍ (mudarabah), a partnership is valid only when the capital consists of silver dirhams or gold dinars. He adds: “By analogy, the mere fact of undivided shared ownership (ishāʿah) in a partnership serves the role of physical commingling.”

The Second Issue
If the two contributions are of kinds for which deferred exchange is forbidden—for instance, one partner brings dinars and the other dirhams, or each supplies a different type of food—Mālik’s opinion is reported in two ways: once he permitted the arrangement and once he prohibited it. He disallowed it because a partnership funded with dirhams from one party and dinars from the other combines partnership with money-exchange (ṣarf) while lacking immediate hand-to-hand delivery; the same legal problem arises when the two foodstuffs are of different kinds. Ibn al-Qāsim adopted the prohibitive view, whereas scholars who did not treat these rationales as decisive deemed the partnership valid.

The Third Issue
Forming a partnership with a single genus of food was declared valid by Ibn al-Qāsim, by analogy with the consensus that it is valid when the capital is one genus of gold or one of silver. Mālik, however, in one of his two opinions—the well-known one—ruled it impermissible because the required immediate exchange is absent; in his view, no analogy may be drawn from a case where the permissibility itself rests on a special dispensation established by consensus.

It has also been said that Mālik’s dislike stems from the following consideration: partnership demands equality in value, whereas sale demands equality in measure. A partnership based on two portions of food from the same genus would therefore have to satisfy both equality of value and equality of measure—something rarely attainable—so he regarded it as objectionable. Such, then, is their disagreement over the nature of the capital that may serve as the subject of partnership.

Must the capital be commingled?
The jurists further disagreed whether mixing the capital is a condition for validity. Mālik held that the two amounts must be blended, either in fact or in legal effect—for example, by placing them in a single box over which both partners have unrestricted authority. Al-Shāfiʿī required an actual mingling so thorough that one partner’s money cannot be distinguished from the other’s. Abū Ḥanīfah, however, deemed the partnership sound even if each partner retains his own money in his own possession.

Thus, for Abū Ḥanīfah a verbal agreement alone suffices; Mālik adds the condition of joint authority to dispose of the capital; and al-Shāfiʿī, in addition to both, stipulates real mixing.

The juristic rationale is that commingling makes the partners’ efforts more complete, for each will look after his partner’s interest just as he does his own. This concludes the discussion of the first pillar and its conditions.

[The Second Pillar: How profit is to be divided in an inan partnership]
Concerning the second pillar—the manner in which the partners divide the profit—they agree that when profit is allotted in proportion to capital, then if both partners contributed equal amounts their profit shares must likewise be equal. They disagree, however, on whether it is permissible for their capital contributions to be unequal while their shares of profit are equal. Mālik and al-Shāfiʿī say it is not permissible, whereas the jurists of Iraq allow it.

Those who forbid it argue that profit parallels loss: just as it would be invalid for one partner to stipulate that the other alone bear part of any loss, so too it is invalid for him to claim a portion of profit unrelated to his capital. They also liken profit to the usufruct of jointly owned real estate, which must be divided according to each partner’s share in the underlying property.