Partnership and Profit in Medieval Islam

Islam

Introduction

Commercial Law and Economic History

From the point of view of economic history, the ideal way to study any institution of commercial law would be to compare the information contained in legal codes and treatises with the material relating to its application in economic life as manifested by actual contracts, letters, and business records found in archives and other repositories. In the case of the early centuries of the Islamic period, available sources unfortunately preclude such a procedure. Theoretical legal texts exist in abundance, but any corresponding documentary material is for all practical purposes non-extant. In order to determine the framework in which the trade and commerce of the early Islamic period was carried on—a trade known to have been active and important—we must of necessity rely on legal treatises for most of our information, while trying wherever possible to call upon whatever meager help other literary sources may provide.

In the absence of documentary and similar sources, the possibility of investigating the quantitative aspects of trade is all but eliminated. However, in those areas of trade which have been described as qualitative, such as the variety of goods exchanged, the specialization of the merchant class, and the complexity of business methods,¹ legal and other literary sources provide a great deal of valuable information. It is with the institutions of partnership and commenda in the early Islamic period, two of the qualitative components of trade, that this study will be concerned.

Pooling resources, whether in the form of cash, goods, skills, or a combination of these, is one of the indispensable components of any extended commercial activity. In Islamic law, the partnership and commenda contracts are the two basic legal instruments by which this can be accomplished. Joseph Kohler, an eminent legal historian of the early part of this century, has asserted that the decline of Islamic commercial hegemony in the Middle Ages was due in a large part to the limitations placed by Islamic law on the development of associative relationships.² Whether the role of commercial legal institutions was as decisive in the economic history of the medieval Near East as Kohler suggested is open to discussion; there can be no question, however, that the institutions of Islamic commercial law are factors to be considered before any judgment can be made concerning the economic growth and decline of the medieval Muslim world.

Historians of the commercial law of the medieval West generally agree that legal techniques not only reflected but also influenced economic practices.³ If we assume at least the same for the medieval Muslim world, then, in spite of the absence of archival documents, a thorough investigation of the major institutions of Islamic commercial law will not only be a chapter of Handelsrechtsgeschichte, but may also serve as an indicator of the level and complexity of those fields of economic activity in which the institution was applicable.

Islamic Law and Practice

From the outset, one confronts the rather complex question of the nature of the sharī‘a (Islamic sacred law) and the fiqh (Islamic jurisprudence),⁴ and the corollary problem of the propriety of using Muslim legal treatises as a source for the investigation of economic and social institutions. Any assumed harmony between medieval Islamic law and the actual practice of that period has been brought into serious question, and even completely denied by several eminent Islamists.

Beginning with the mid-nineteenth century, translations of a number of fiqh manuals into European languages made Islamic legal material available for the first time to Western legal historians and comparative legal scholars. Some of these translations were of questionable accuracy,⁵ and the non-Arabist legal scholars treating the material were unable to compensate for this deficiency by referring back to the original sources. In addition, these scholars approached the corpus of Islamic religious law on the assumption that it was a determining factor in the actual practices of the Muslim world, and attempted to impose some consistency within the material by applying their own concepts of legal classification to it. Two of the leading orientalists of the day, C. S. Hurgronje and I. Goldziher, reacted to what they considered to be a misconception and abuse of fiqh material by attempting to provide an analysis of the fiqh in its Islamic historical context.⁶

Fiqh in their view is not, strictly speaking, law, and any attempt to treat it as such would inevitably be misleading. It is, rather, a religious doctrine of duties (Pflichtenlehre) claiming jurisdiction over every aspect of human life. The most important problems of civil, ritual, and criminal law are, in this respect, on the same level as formulae of greeting and amenities of table manners. Those aspects of life which the law encompasses in other societies and cultures form only one part of the fiqh and, therefore, according to this view, any purely legal approach to fiqh would lead to misunderstanding.⁷

Furthermore, the fiqh had very little to do with actual practice. It was only of theoretical significance and was developed by the religious scholars according to the paradigm of what they considered to be a golden age, namely, the period of the first four caliphs. The religious-legal scholars saw their task as that of creating an ideal doctrine of how things ought to be; and the fact that things were not as they ought to be can be amply documented by the numerous references to transgressions of the law.⁸ The law was destined for the ideal society and did not take into account the needs of a corrupt world. As Hurgronje summed it up: . . . all classes of the Muslim community have exhibited in practice an indifference to the sacred law in all its fulness, quite equal to the reverence with which they regard it in theory.⁹ By implication, he also ruled out the use of legal material as a source for any study except that of the development of Islamic theoretical legal doctrine as one of the important elements of Muslim intellectual life.¹⁰

The works of Goldziher and Hurgronje on the nature and origins of Islamic law and jurisprudence were a great advance in their own day both in indicating how this material should be approached and in showing that the conventional Muslim view concealed rather than revealed the truth. Their view of the origins and formative period of Muslim law and jurisprudence has since been revised by the detailed research of J. Schacht.¹¹ However, the judgment of these scholars on the relationship of law to practice and on the validity of legal material as an acceptable source for the social and economic history of Islam, while somewhat modified, has not been subject to any systematic reappraisal. Even though a significant amount of new material bearing on this problem has come to light in the past fifty years, it has not been systematically collected and studied with this problem in mind. An investigation of this nature would, of course, be a subject deserving of a separate study; but, in view of its importance to the present discussion, some of the more relevant material and ideas toward such a re-evaluation deserve mention here.

That the separation between fiqh and life was not absolute is conceded by all. In every generation there were groups of pious men whose entire lives were guided by the prescriptions of the sacred law. On a broader level, certain segments of the fiqh actually had wide application, especially those dealing with ritual and family law. It has become increasingly clear that this distinction between the ideal law and the profane practice did not apply with equal force to all segments of the fiqh. G. Bergsträsser was, I believe, the first one to point out that the adherence of Muslim peoples to the various aspects of the fiqh varied greatly according to time and place, and that the study of Islamic law and history was not yet at an advanced enough stage to pronounce the final word on the problem of law and practice.¹²

He did, however, distinguish three broad categories: (1) Ritual, family, and inheritance law, which, notwithstanding occasional deviations based on custom, adhered closest to the fiqh; (2) Constitutional, criminal, and fiscal law, which diverged farthest and, in some cases, completely from the fiqh; and (3) Commercial law, which falls somewhere between the two above extremes.¹³ This evaluation of the position of Islamic commercial law vis à vis practice stands in sharp contrast to its earlier appraisal by Hurgronje: Islamic commercial law remained for the most part a dead letter; the great Ghazzālī, ‘the reviver of religion,’ said in the eleventh century of our era that anyone conducting commerce in accordance with the law was looked upon as ridiculous by all other merchants.¹⁴

While recognizing the ideal character of Islamic law, one cannot state a priori that any given institution had no relationship whatsoever to practice. This is especially so in the area of fiqh termed mu‘āmalāt—pecuniary transactions. Most of the material covered by these laws, for example the contracts of partnership and commenda, does not involve any religious or moral principle. No religious or ethical value is attached to them. In the earliest legal texts especially, there is no reason not to consider them as a reflection and partial description of institutions as they existed at that time.

One must also bear in mind that, while the commenda was apparently a commercial form original with the Arabs, an institution like partnership was not an innovation of, or in any way peculiar to, Islamic law. It was known and practiced in the Near East at least since the Babylonians.¹⁵ It was known and discussed in the Talmud,¹⁶ and it is treated in the Corpus Iuris Civilis ammad.¹⁸ Gaonic responsa of the ninth and tenth centuries amply testify to the use of both partnership and commendas by Jewish merchants living under Muslim suzerainty.¹⁹ Partnership and commenda alike were known, accepted legal commercial institutions in the medieval Muslim world; in the absence of contrary evidence, we are justified in assuming they were extensively employed in trade.²⁰

Although the published Arabic papyri contain, as far as I know, no example of a commercial partnership or of a commenda agreement,²¹ they do contain examples of other types of business contracts mentioned in the fiqh.²² The formal similarity of papyri documents from different places and different times indicates beyond a doubt that they followed a uniform legal content.²³ Papyri evidence also indicates that in many cases a contract was written in several copies;²⁴ this parallels the instructions contained in some of the earliest fiqh works.²⁵ If, then, as the papyri evidence suggests, various types of contracts generally followed the prescriptions of the relevant sections of the fiqh, we can expect the same to be true of partnership and related contracts.

The extent to which Islamic law made an accommodation with customary commercial practice is evidenced by the very existence of an entire genre of legal writings known as the shurū (legal formulae) literature. From a very early period, Islamic legal theory, diverging from an explicit Qur’ānic ruling, denied the validity of documentary evidence and restricted legal proof to the oral testimony of witnesses.²⁶ In spite of this, religious lawyers took cognizance of the indispensability of written contracts to commerce by composing formularies. These were intended to serve as handbooks for notaries, and provide the forms for a great variety of practical needs. They had only to be witnessed to be legally valid.²⁷

The earliest extant shurū āwī (d. 321/933).anīfa (d. 150/767),³⁰ Abū Yūsuf (d. 182/798),³¹ and Shaybānī (d. 187/803).³² Indeed, the Book of Partnership of Shaybānī’s Kitāb al-a lanafī school, begins with a suggested formula for writing a partnership contract.³³ Formulae for various types of specialized partnerships are cited throughout the book, forming an integral part of the legal exposition of partnership.³⁴ The inclusion of contract formulae within the very body of the early fiqh texts is one very significant manifestation of the degree to which customary commercial practice was assimilated into, and is reflected by, the theoretical legal works.

In most areas of business law, the fiqh allowed considerable leeway to traders and investors and, on the whole, probably provided adequate legal instruments for the commercial needs of the early Islamic period. Islamic law did, however, place some serious restrictions and limitations on the freedom of commercial activity. It is undoubtedly against the prohibitions which grew out of these restrictions that the transgressions of merchants, which Ghazzālī and others complained about,³⁵ took place. In this respect, we can agree with Schacht’s statement that the hostile references to the practice in treatises of Islamic law are one of our main sources for its investigation.³⁶

iyal (legal devices) literature, in which the lawyers attempted to narrow down the area in which actions would be in violation of the law by making them conform to the law formally while in reality circumventing it.³⁷

iyal) can be described in short as the use of legal means for achieving extra-legal ends—ends that could not be achieved directly with the means provided by the sharī‘ah, whether or not such ends might in themselves be illegal. The ‘legal devices’ enabled persons who would otherwise have had to break the law, or under the pressure of circumstances would have had to act against its provisions, to arrive at the desired result while actually conforming to the letter of the law."³⁸ Thus, for example, a number of devices were developed to circumvent the taking or giving of interest, and others to permit capital in the form of commodities to serve as investments in partnership and commenda contracts.³⁹

iyal anafī school, are of interest in connection with commercial practice.iyal, like those of shuru iyal.⁴²

iyal iyal literature represents the pressure points of daily practice on legal theory and can serve, in the field of commercial law especially, as a valuable guide to the practices current in the medieval Muslim world.

Sources

A number of studies of Islamic law have been based on legal manuals chosen more or less arbitrarily. Indeed, there can be no objection to this method if one wishes simply to investigate the various prescriptions of Muslim positive law. This would not be the case, however, in a historically oriented study. I have, therefore, based the following discussion primarily on the earliest compilations of Islamic law dating from the late eighth and early ninth centuries A.D.⁴³

Classical Islamic law, as we know it today, was created during the first two centuries of the Islamic era. The raw material from which it was formed was of varied provenance. It was to a large degree non-Islamic, but all was subjected in one degree or another to an Islamicizing process. By the end of the second Islamic century, all the major Islamic positive legal institutions were already formulated, as were its legal theory and jurisprudence. Islamic law, which until the early ‘Abbāsid period had been adaptable and growing, from then onwards became increasingly rigid and set in its final mold. . . . It was not altogether immutable, but the changes which did take place were concerned more with legal theory and the systematic superstructure than with positive law. . . . Taken as a whole, however, Islamic law reflects and fits the social and economic conditions of the early ‘Abbāsid period, but has become more and more out of touch with later developments of state and society.⁴⁴

The legal compilations of the eighth and ninth centuries antedate the rigidity and artificiality imposed by the complete triumph of prophetic traditions as the foremost source for Muslim law. They retain a measure of flexibility due to the extensive use of ra’y anafī and Mālikī schools of isti sān (juristic preference) and isti lāh (regard for the public interest).⁴⁵ The exercise of these prerogatives was often connected with a concern on the part of the lawyers for the practical needs of daily life. The chapters on partnership and commenda contain numerous instances in which systematic legal reasoning is suspended because of the custom of the merchants or because of the needs of merchants. Other applications of juristic preference, although not coupled with these phrases, reveal a clear tendency toward allowing a greater freedom of trade practice.⁴⁶ In the later legal treatises, this leniency, which often provides valuable indications of actual practice, is replaced by imitation and rigidity.

Some creative and original legal work continued until the beginning of the fourth century of the Islamic era, at which time the door of independent reasoning was closed. After this date, all future legal activity was relegated to commentary, explanation, and interpretation of the existing legal doctrine. Even the fatāwā (responsa) literature, in which one would expect to find reflections of contemporary problems, generally contains only extracts and quotations from earlier legal works. There are exceptions; however, these are almost exclusively fatāwā works of the very late Middle Ages or early pre-modern times.

In Muslim law the tendency is to concentrate on specific cases. This led in the course of time to a continual increase in the volume of its subject matter.anafī law was already constituted. Even before the closing of the gate of independent reasoning, it was only a case of applying analogy to solutions already admitted or opting for one of a number of solutions in controversy.⁴⁹

The treatment of partnership and commenda in Islamic legal treatises remained essentially the same from the time of Shaybānī to that of the Ottoman Majallah. The extent to which its application in practice passed through any major changes in the course of the thousand intervening years cannot be determined without other literary or documentary evidence. By focusing primarily on the legal sources and legal material emanating from the eighth and ninth centuries—a period in which Islamic legal theory and practice were least divergent—I hope to be able to describe the institution of partnership as it existed in the law and, to a large extent, in the practice of that period.

The following are the most important primary sources used in this study:

anafī

(1) The Kitāb ash-sharika (Book of Partnership) of Shaybānī’s great legal compilation Kitāb al-a lanafī law, and only one small section of it has thus far been published.⁵⁰ My translations of, and references to, the Kitāb al-a l are based on the manuscript of the Dār al-Kutub al-Mi riyya, Fiqh anafī 34, folios 57b–77b.

(2) The Kitāb al-mu āraba ("Book of Commenda") of Shaybānī’s Kitāb al-a l, from the manuscript of the Dār al-Kutub al-Mi riyya, Fiqh anafī 491, folios 42–198.

(3) Kitāb al mabsū of Sarakhsī (d. 483/1090).⁵¹ This thirty-volume compendium is a commentary on the Kitāb al-kāfī fil-fiqh (unpublished) of al-Marwazī (d. 334/945),⁵² which is in turn based on the legal writings of Shaybānī.⁵³ The Mabsū contains a good deal of earlier material unavailable in other sources, and its Book of Partnership⁵⁴ and "Book of Commenda anafī law.

(4) Badā’i‘ a - anā’i‘ fī tartīb ash-sharā’i‘ of Kāsānī (d. 587/1191).⁵⁶ This work is a commentary on the Kitāb tu fat al-fuqahāmad as-Samarqandī (d. 538/1144)⁵⁷ and is characterized by a highly systematic and well-organized arrangement (tartīb) of the legal subject matter.⁵⁸

Mālikī

(1) Al-muwa a’, of Mālik b. Anas (d. 179/795),⁵⁹ the founder of the Mālikī school of Muslim Law. The Muwa a’ is a collection of traditions arranged according to relevant legal chapters and is the earliest extant work of Islamic law. Its aim is to codify and systematize the customary law of Madina and "give a survey of law and jurisprudence according to the ijmā‘ (consensus) and sun-nah (traditional practice) of Madina."⁶⁰ While it includes a fairly substantial treatment of the commenda contract, it does not contain a section on partnership.

(2) Al-mudawwana al-kubrānūn (d. 240/854).mān b. al-Qāsim (d. 191-806),⁶² who studied with Mālik for a period of twenty years. These answers often literally repeat Mālik’s own views on the various points of law.

Shāfi‘ī

(1) Kitāb al-umm of Shāfi‘ī (d. 204/820),⁶³ the founder of the Shāfi‘ī school. In this work, as in many subsequent Shāfi‘ī legal compendia, the discussion of partnership and commenda is rather skimpy, not to say perfunctory, and is only of marginal interest with respect to medieval Near Eastern mercantile practice.

anbalī school is not included in this study, because no systematic treatises of this school exist for the early period.āhirī school. The other minor legal schools which flourished briefly in the early centuries of the Islamic era, such as those of Al-Awzā‘ī and Ibn Abī Laylā, have left insufficient literary remains, making it impossible to reconstruct their doctrine on partnership.

¹ R. S. Lopez, in The Cambridge Economic History of Europe, Cambridge, 1952, 2:258.

² Joseph Kohler and Leopold Wenger, Allgemeine Rechtsgeschichte, Orientalisches Recht und Recht der Griechen und Römer, Berlin, 1914, p. 98.

³ R. S. Lopez and I. W. Raymond, Medieval Trade in the Mediterranean World, pp. 156–235.

⁴ For a full definition of these terms, cf. S. Vesey-Fitzgerald in Law in the Middle East, 1:86–87.

⁵ Cf. Hurgronje’s review of one of these translations in his Verspreide Geschriften, Bonn and Leipzig, 1923, 2:59ff; also Selected Works of C. Snouck Hurgronje, eds. J. Schacht and G.-H. Bousquet, Leiden, 1957, pp. 214–215.

⁶ Most of Hurgronje’s writings on the subject can now be found in his Selected Works; for Goldziher’s views, cf. his Vorlesungen über den Islam, Heidelberg, 1910, Chap. 2, his article in Encyclopaedia of Islam (El), 1st ed., s.v. fi h, and his polemical article, Muhammedanisches Recht in Theorie und Wirklichkeit, Zeitschrift für vergleichende Rechtswissenschaft 8 (1889): 406–423.

⁷ Cf. Hurgronje, Selected Works, pp. 49, 256–258.

⁸ Cf. Goldziher, Muhammedanisches Recht . . . , pp. 408–418.

⁹ Hurgronje, Selected Works, p. 290.

¹⁰ Ibid., p. 263.

¹¹ Cf. J. Schacht, Origins of Muhammadan Jurisprudence, Oxford, 1950.

¹² J. Schacht, ed., G. Bergsträssers Grundzüge des Islamischen Rechts, Berlin, 1935, p. 3.

¹³ Schacht, Grundzüge, pp. 119–122; Schacht, Law in the Middle East, 1:77; R. Brunschvig, Considérations sociologiques sur le, droit musulman, Studia Islamica, 3:61–62.

¹⁴ Hurgronje, Selected Works, p. 260.

¹⁵ Cf. W. Eilers, Gesellschaftsformen im altbabylonischen Recht, Leipzig, 1931

¹⁶ E.g., Babylonian Talmud, Baba Me ī’a, Chapter 5.

¹⁷ Cf. Institutes, trans. J. B. Moyle, Oxford, 1906, pp. 148–150; Digest 17. 2, Pro Socio, ed. and trans. C. H. Monro, Cambridge, 1902.

¹⁸ Cf. H. Lammens, La Mecque à la veille de l’hégire, Beirut, 1924, pp. 116ff.

¹⁹ Cf. S. Asaf, ed., Gaonic Responsa, Jerusalem, 1928; idem, Gaonica, Jerusalem, 1933. For a slightly later period, we have the documentary evidence of the Cairo Geniza, cf. S. D. Goitein, Commercial and Family Partnerships in the Countries of Medieval Islam, Islamic Studies 3 (1964): 315ff., and idem, A Mediterranean Society, The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, Economic Foundations, California, 1967, 1:169–179.

²⁰ Cf. Ghazzālī, I yā ‘ulūm ad-dīn, Cairo, 1957, 2:66ff., where the contracts of partnership and commenda are mentioned among the six commendai contracts, the knowledge of which Ghazzālī considers indispensable to any businessman.

²¹ The word partnership (sharika) occurs in the papyri only once. This reference is in connection with some income from a partnership investment, and no details concerning the contract are given. Cf. A. Dietrich, Arabische Papyri aus der Hamburger Staats- und Universitätsbibliothek, Leipzig, 1937, p. 51, l. 10.

²² E.g., kitāb al-kirā’ (lease contract); cf. A. Grohmann, Einführung und Chrestomathie zur arabischen Papyruskunde, Prague, 1955, p. 108; and for kitāb ar-rahn (pledge contract); cf. p. 121.

²³ Cf. ibid., p. 113.

²⁴ Ibid., p. 134.

²⁵ E.g., Shaybānī, A l, Kitāb ask-sharika āwī, Kitāb ash-shuf‘a, ed. J. Schacht, p. 39, ll. 20–24.

²⁶ Cf. Emile Tyan, Le notariat et le régime de la preuve par écrit dans la pratique du droit musulman, 2nd ed., Beirut, n.d., pp. 5ff.; Schacht, Law in the Middle East, 1:35. For the most recent and comprehensive discussion of the place of written documents in Islamic law, cf. Jeanette Wakin, Islamic Law in Practice: Two Chapters from Ta āwī’s Kitāb al-shurū al-kabīr, unpublished doctoral dissertation, Columbia University, 1968.

āwī, Kitāb adhkār al- uqūq war-ruhūn, Sitzungsberichte der Heidelberger Akademie der Wissenschaften, Philosophisch-historische Klasse, ed. J. Schacht, 1926/7, p. 7.

²⁸ C. Brockelmann, Geschichte der arabischen Litteratur (GAL), 2 vols., 1:181–182 (173–4); Suppāwī’s most detailed treatise on shurū (Al-jāmī‘ al-kabīr fish-shurū ) have been published: the Kitāb adhkār al- uqūq war-ruhūn (cf. the preceding note), and the Kitāb ash-shuj’a, also edited by Schacht in the same series as the former, 1929/30. Two other large fragments of the work are found in Istanbul: Shehid Ali Pasha āwī composed two other shurū works: Kitāb ash-shurū al-awsa , and Kitāb ash-shurū a - aghir. Three complete copies of the latter are preserved in Istanbul: Murad Mollah 997 and 998, and Bayazit 18905. These include a brief treatment of the shurū for partnership and commenda.

āwī, Kitāb adhkār al- uqūq war-ruhūn, 1926–1927, p. 18. Extracts of Shaybānī’s treatment of shurū are preserved in Sarakhsī, 30 vols., Cairo, 1324/1906–1331/1912, Mabsū , 30:167–209.

³⁰ Brockelmann, GAL, 1:176–177 (168–169); Supp., 1:284–287.

³¹ Brockelmann, GAL, 1:177 (171); Supp., 1:288.

³² Brockelmann, GAL, 1:178–180 (171–172); Supp., 1:288–291.

³³ Shaybānī, A l, Kitāb ash-sharika fol. 57b, ll. 3–8.

³⁴ E.g., credit partnership, ibid., fol. 57b, ll. 12–15; work partnership, ibid., fol. 57b. l. 20–fol. 58; l. 1. For the commenda shurū , cf. Shaybānī, A l, Mu āraba, fol. 140b.

³⁵ Cf. Hurgronje, Selected Works, p. 260.

³⁶ Schacht in Law in the Middle East, 1:80.

ijal- Literatur," Der Islam 15 (1926): 211ff.

³⁸ Schacht in Law in the Middle East, 1:78.

³⁹ Cf. Shaybānī, Kitāb al-makhārij fil- iyal, ed. J. Schacht, Leipzig, 1930, P. 58.

iyal work of the Shāfi‘ī al-Qazwīnī, cf. Schacht, Der Islam 15 (1926): 213, n. 4.

āf’s Kitāb al- iyal wal-makhārij, cf. Schacht in Law in the Middle East: 1:79.

iyal iyal book, but attributed to Abū Yūsuf. Cf. Chafik T. Chehata, Théorie générale de l’obligation, Cairo, 1936, 1:3.

anafī law, to later sources. In almost all such cases, however, the material cited from these later texts dates back to, or is implicit in, the legal discussions of the earliest period.

⁴⁴ Schacht, Law in the Middle East, 1:76–77.

⁴⁵ Cf. J. Schacht, An Introduction to Islamic Law, Oxford, 1959, 1964, pp. 60–61.

⁴⁶ E.g., Shaybānī, A l, Kitāb ash-sharika fol. 62, l. 20-fol. 62b, l. 1; Sarakhsī, Mabsū , 11:180–181; Kāsānī, 7 vols., Cairo, 1328/1910, 6:68.

⁴⁷ Cf. Hurgronje, Selected Works, p. 52.

⁴⁸ Ibid., p. 54: "A survey of the works on fiqh up to the year A.D. 1000 shows that by then each school had discussed and answered practically all questions of any importance."

⁴⁹ Chehata, Théorie générale de l’obligation, p. 51; for a discussion of the succeeding layers of new cases from the point of view of legal doctrine and presentation, cf. G. Bergsträsser, "Zur Methode der fiqh-Forschung," Islamica 4 (1931): 291.

⁵⁰ Kitāb al-buyū‘ was-salamāta, Cairo, 1954.

⁵¹ Brockelmann, GAL, 1:460 (373); Supp., 1:638.

⁵² Brockelmann, GAL, 1:182 (174); Supp., 1:294.

⁵³ Cf. Nicolas P. Aghnides, Mohammedan Theories of Finance, 2nd impression, Lahore, 1961, p. 177.

⁵⁴ Sarakhsī, Mabsū , 11:151–220.

⁵⁵ Ibid., 22:17–187.

⁵⁶ Brockelmann, GAL, 1:465 (375–376); Supp., 1:643.

⁵⁷ Brockelmann, GAL, 1:462 (374); Supp., 1:640, where his death date is erroneously given as 508/1114.

⁵⁸ Cf. Aghnides, Mohammedan Theories of