Partnership, Transferral of Responsibility to an Agent and Revocation

86 Malik said that there was no harm if a man who was selling some drapery, and had excluded some garments by their markings, stipulated that he would chose the marked ones from that. If he did not stipulate that he would choose from them when he made the exclusion, I think that he is partner in the number of drapery goods which were purchased from him. That is because two garments can be alike in marking and greatly different in price.

Malik said, " The way of doing things among us is that there is no harm in partnership, transferring responsibility to an agent and revocation when dealing with food and other things, whether or not possession was taken, when the transaction is with cash, and there is no profit, loss or deferment of its price. If profit or loss or deferment of the price from one of the two enters any of these transactions, it becomes a sale which is made halal by what makes sales halal, and made haram by what makes sale haram, and it is not partnership, transferring responsibility to an agent, or revocation."

Malik spoke about someone who bought drapery goods or slaves, and the sale was concluded, then a man asked him to be his partner and he agreed and the new partner paid the whole price to the seller and then something happened to the goods which removed them from their possession. Malik said, " The new partner takes the price from the original partner and the original partner demands from the seller the whole price unless the original partner stipulated on the new partner during the sale and before the transaction with the seller was completed that the seller was responsible to him. If the transaction has ended and the seller has gone, the precondition of the original partner is void, and the responsibility is his."

Malik spoke about a man who asked another man to buy certain goods to share between them, and he wanted the other man to pay for him and he would sell the goods for the other man. Malik said, " That is not good. When he says, 'Pay for me and I will sell it for you, ' it becomes a loan which he makes to him in order that he sell it for him and if those goods are destroyed or perish, the man who paid the price will demand from his partner what he put in for him. This is part of the advance which brings in profit."

Malik said, " If a man buys goods and the sale is completed, and then a man says to him, 'Share half of these goods with me and I will sell them all for you, ' that is halal and there is no harm in it. The explanation of that is that this is a new sale and he sells him half of the goods provided that he sells the entire lot."

Bankruptcy of Debtors

87 Yahya related to me from Malik from Ibn Shihab from Abu Bakr ibn 'Abd ar-Rahman ibn al-Harith ibn Hisham that the Messenger of Allah, may Allah bless him and grant him peace, said, " Whenever a man sells wares and then the buyer becomes bankrupt and the seller has not taken any of the price and he finds some of his property intact with the buyer, he is more entitled to it than anyone else. If the buyer dies, then the seller is the same as other creditors with respect to it."

[mursal]

88 Yahya related to me from Malik from Yahya ibn Sa'id from Abu Bakr ibn Muhammad ibn 'Amr ibn Hazm from 'Umar ibn 'Abd al-'Aziz from Abu Bakr ibn 'Abd ar-Rahman ibn al-Harith ibn Hisham from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, " If anyone goes bankrupt and a man finds his own property intact with him, he is more entitled to it than anyone else."

[cf Bukhari 2272]

Malik spoke about a man who sold a man wares, and the buyer went bankrupt. He said, " The seller takes whatever he finds of his goods. If the buyer has sold some of them and distributed them, the seller of the wares is more entitled to them than the creditors. What the buyer has distributed does not prevent the seller from taking whatever of it he finds. It is the seller's right if he has received any of the price from the buyer and he wants to return it to take what he finds of his wares, and in what he does not find he is like the other creditors."

Malik spoke about someone who bought spun wool or a plot of land, and then did some work on it, like building a house on the plot of land or weaving the spun wool into cloth. Then he went bankrupt after he had bought it and the original owner of the plot said, " I will take the plot and whatever structure is on it." Malik said, " That structure is not his. However, the plot and what is on it that the buyer has improved is appraised. Then one sees what the price of the plot is, and how much of that value is the price of the structure. They are partners in that. The owner of the plot has as much as his portion, and the creditors have the amount of the portion of the structure."

Malik said, " The explanation of that is that the value of it all is fifteen hundred dirhams, and the value of the building is one thousand dirhams. The owner of the plot has a third, and the creditors have two-thirds."

Malik said, " It is like that with spinning and other things of a similar nature in such circumstances when the buyer has a debt which he cannot repay. This is the normative practice in such cases."

Malik said, " As for goods which have been sold and which the buyer has not improved, but those goods sell well and have gone up in price, so their owner wants them and the creditors also want them, then the creditors can choose between giving the owner of the goods the price for which he sold them and not giving him any loss and surrendering his goods to him.

" If the price of the goods has gone down, the one who sold them has a choice. If he likes, he can take his goods and then he has no claim to any of his debtor's property, and that is his right. If he likes, he can be one of the creditors and take a portion of his due and not take his goods. That is up to him."

Malik said about someone who bought a slave-girl or animal and she gave birth while in his possession and then the buyer went bankrupt: " The slave-girl or the animal and the offspring belong to the seller unless the creditors desire it. In that case they give him his complete due and then they take it."

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